Exhibit 4.4
DATAWARE TECHNOLOGIES, INC.
and
__________________________________, as Trustee
_________
INDENTURE
Dated as of ___________________, ____
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE................................ 1
1.1 Definitions.................................................................. 1
1.2 Other Definitions............................................................ 5
1.3 Incorporation by Reference of Trust Indenture Act............................ 6
1.4 Rules of Construction........................................................ 6
ARTICLE 2 THE SECURITIES............................................................ 7
2.1 Issuable in Series........................................................... 7
2.2 Establishment of Terms of Series of Securities............................... 7
2.3 Execution and Authentication................................................. 9
2.4 Registrar and Paying Agent................................................... 10
2.5 Paying Agent to Hold Assets in Trust......................................... 11
2.6 Securityholder Lists......................................................... 12
2.7 Transfer and Exchange........................................................ 12
2.8 Replacement Securities....................................................... 12
2.9 Outstanding Securities....................................................... 13
2.10 When Treasury Securities Disregarded; Determination of Holders' Action....... 13
2.11 Temporary Securities......................................................... 14
2.12 Cancellation................................................................. 14
2.13 Payment of Interest; Defaulted Interest; Computation of Interest............. 14
2.14 CUSIP Number................................................................. 15
2.15 Provisions for Global Securities............................................. 15
2.16 Persons Deemed Owners........................................................ 16
ARTICLE 3 REDEMPTION................................................................ 17
3.1 Notices to Trustee........................................................... 17
3.2 Selection by Trustee of Securities to Be Redeemed............................ 17
3.3 Notice of Redemption......................................................... 17
3.4 Effect of Notice of Redemption............................................... 18
3.5 Deposit of Redemption Price.................................................. 19
3.6 Securities Redeemed in Part.................................................. 19
ARTICLE 4 COVENANTS................................................................. 19
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TABLE OF CONTENTS
(continued)
Page
4.1 Payment of Securities........................................................ 19
4.2 SEC Reports.................................................................. 20
4.3 Waiver of Stay, Extension or Usury Laws...................................... 20
4.4 Compliance Certificate....................................................... 20
4.5 Corporate Existence.......................................................... 21
ARTICLE 5 SUCCESSOR CORPORATION..................................................... 21
5.1 Limitation on Consolidation, Merger and Sale of Assets....................... 21
5.2 Successor Person Substituted................................................. 22
ARTICLE 6 DEFAULTS AND REMEDIES..................................................... 22
6.1 Events of Default............................................................ 22
6.2 Acceleration................................................................. 23
6.3 Remedies..................................................................... 24
6.4 Waiver of Past Defaults and Events of Default................................ 24
6.5 Control by Majority.......................................................... 24
6.6 Limitation on Suits.......................................................... 25
6.7 Rights of Holders To Receive Payment......................................... 25
6.8 Collection Suit by Trustee................................................... 25
6.9 Trustee May File Proofs of Claim............................................. 26
6.10 Priorities................................................................... 26
6.11 Undertaking for Costs........................................................ 27
ARTICLE 7 TRUSTEE................................................................... 27
7.1 Duties of Trustee............................................................ 27
7.2 Rights of Trustee............................................................ 28
7.3 Individual Rights of Trustee................................................. 29
7.4 Trustee's Disclaimer......................................................... 29
7.5 Notice of Default............................................................ 30
7.6 Reports by Trustee to Holders................................................ 30
7.7 Compensation and Indemnity................................................... 30
7.8 Replacement of Trustee....................................................... 31
7.9 Successor Trustee by Consolidation, Merger or Conversion..................... 32
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TABLE OF CONTENTS
(continued)
Page
7.10 Eligibility; Disqualification.............................................. 32
7.11 Preferential Collection of Claims Against Company.......................... 32
7.12 Paying Agents.............................................................. 32
ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................... 33
8.1 Without Consent of Holders................................................. 33
8.2 With Consent of Holders.................................................... 33
8.3 Compliance with Trust Indenture Act........................................ 35
8.4 Revocation and Effect of Consents.......................................... 35
8.5 Notation on or Exchange of Securities...................................... 35
8.6 Trustee to Sign Amendments, Etc............................................ 36
ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE....................................... 36
9.1 Discharge of Indenture..................................................... 36
9.2 Legal Defeasance........................................................... 36
9.3 Covenant Defeasance........................................................ 37
9.4 Conditions to Legal Defeasance or Covenant Defeasance...................... 37
9.5 Deposited Money and U.S. and Foreign Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.............................. 39
9.6 Reinstatement.............................................................. 39
9.7 Moneys Held by Paying Agent................................................ 40
9.8 Moneys Held by Trustee..................................................... 40
ARTICLE 10 MISCELLANEOUS........................................................... 40
10.1 Trust Indenture Act Controls............................................... 40
10.2 Notices.................................................................... 41
10.3 Communications by Holders with Other Holders............................... 42
10.4 Certificate and Opinion as to Conditions Precedent......................... 42
10.5 Statement Required in Certificate and Opinion.............................. 42
10.6 Rules by Trustee and Agents................................................ 43
10.7 Business Days; Legal Holidays; Place of Payment............................ 43
10.8 Governing Law.............................................................. 43
10.9 No Adverse Interpretation of Other Agreements.............................. 43
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TABLE OF CONTENTS
(continued)
Page
10.10 No Recourse Against Others................................................. 43
10.11 Successors................................................................. 44
10.12 Multiple Counterparts...................................................... 44
10.13 Table of Contents, Headings, Etc........................................... 44
10.14 Severability............................................................... 44
10.15 Securities in a Foreign Currency or in Euro................................ 44
10.16 Judgment Currency.......................................................... 45
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
----------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N/A
(a)(4) N/A
(a)(5) 7.10
(b) 7.8; 7.10; 10.4
(b)(1) 7.10
(b)(9) 7.10
311(a) 7.11
(b) 7.11
312(a) 2.6
(b) 10.3
(c) 10.3
313(a) 7.6
(b)(1) 7.6
(b)(2) 7.6
(c) 7.6; 10.4
(d) 7.6
314(a) 4.2; 4.4; 10.4
(b) N/A
(c)(1) 10.4; 10.5
(c)(2) 10.4; 10.5
(c)(3) N/A
(d) N/A
(e) 10.5
(f) N/A
315(a) 7.1, 7.2
(b) 7.5; 10.2
(c) 7.1
(d) 6.5; 7.1; 7.2
(e) 6.11
316(a)(last sentence) 2.10
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) 8.2
(b) 6.7
(c) 8.4
317(a)(1) 6.8
v
(a)(2) 6.9
(b) 2.5; 7.12
318(a) 10.1
_________________________
N/A means not applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
vi
INDENTURE, dated as of ______________, ____, by and between Dataware
Technologies, Inc. a Delaware corporation, as Issuer (the "Company") and
_________________, a ________________ organized under the laws of
_______________________, 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 debentures, notes
or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done, and the execution and
delivery thereof have been in all respects duly authorized by the parties
hereto.
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 of a Series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1 Definitions.
-----------
"Affiliate" of any specified Person means any other Person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such specified Person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Board of Directors" means the Board of Directors of the Company or any
committee duly authorized to act therefor.
"Board Resolution" means a copy of a resolution certified pursuant to an
Officers' Certificate to have been duly adopted by the Board of Directors of the
Company and to be in full force and effect on the date of such certification and
delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such Person or any option, warrant or other security convertible
into any of the foregoing.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor and any other primary obligor on
the Securities.
"Company Order" means a written order signed in the name of the Company by
two Officers, one of whom must be its Chief Executive Officer or its Chief
Financial Officer.
"Company Request" means any written request signed in the name of the
Company by its Chief Executive Officer, its President, any Vice President, its
Chief Financial Officer or its Treasurer and attested to by the Secretary or any
Assistant Secretary of the Company.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Default" means any event that is, or with the passing of time or giving of
notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository for such Series by the Company, which Depository
shall be a clearing agency registered under the Exchange Act, until a successor
Depository shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depository" shall mean each Person who is then a
Depository hereunder, and if at any time there is more than one such Person,
such Persons.
"Dollars" means the currency of the United States of America.
"Euro" means the single currency to be introduced at the start of the third
stage of economic and monetary union pursuant to the treaty establishing the
European Economic Community, as amended by the Treaty on European Union signed
at Maastricht on February 7, 1992.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of the United States of America.
"Foreign Government Obligations" means with respect to Securities of any
Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of
which obligations its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by or acting as an agency or instrumentality of
such government the timely payment of which is unconditionally guaranteed
2
as a full faith and credit obligation by such government, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof.
"GAAP" means generally accepted accounting principles consistently applied
as in effect in the United States from time to time.
"Global Security" or "Global Securities" means a Security or Securities, as
the case may be, in the form established pursuant to Section 2.2, evidencing all
or part of a Series of Securities issued to the Depository for such Series or
its nominee, and registered in the name of such Depository or nominee, and
bearing the legend set forth in Section 2.15(c) (or such legend as may be
specified as contemplated by Section 2.2 for such Securities).
"Holder" or "Securityholder" means the Person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to any Person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding any balances that constitute accounts payable or trade
payables, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing indebtedness would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP.
"Indenture" means this Indenture as amended, restated or supplemented from
time to time.
"Interest Payment Date" when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any capitalized lease obligation, conditional sales, or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"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, notice of option to elect
payment or otherwise.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company or any other officer designated by the Board of Directors, as the case
may be.
3
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman, Chief Executive Officer, the President or any Senior or
Executive Vice President, and the Chief Financial Officer or any Treasurer of
such Person that shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
"Redemption Date," when used with respect to any Security of a Series to be
redeemed, means the date fixed for such redemption pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department or division of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the same
functions.
"Securities" means the securities that are issued under this Indenture, as
amended or supplemented from time to time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" or "Series of Securities" means each series of debentures, notes
or other debt instruments of the Company created pursuant to Sections 2.1 or 2.2
hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of the
Company that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
regulation is in effect on the date hereof, or (ii) any group of direct or
indirect Subsidiaries of the Company that, taken together as a group, would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation is in effect on
the date hereof.
"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, and when used with
respect to any other Indebtedness, means the date specified in the instrument
governing such Indebtedness as the fixed date on which the principal of such
Indebtedness, or any installment of interest thereon, is due and payable.
4
"Subsidiary" of any specified Person means any corporation, limited
liability company, partnership, joint venture, association or other business
entity, whether now existing or hereafter organized or acquired, (i) in the case
of a corporation, of which more than 50% of the total voting power of the
Capital Stock entitled (without regard to the occurrence of any contingency) to
vote in the election of directors thereof is held, directly or indirectly by
such Person or any of its Subsidiaries; or (ii) in the case of a partnership,
joint venture, association or other business entity, with respect to which such
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with such Person for financial
statement purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-
77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Trustee" means the party named as such in this Indenture until a successor
replaces it pursuant to this Indenture and thereafter means the successor, 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.
"U.S. Government Obligations" means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
1.2 Other Definitions.
-----------------
The definitions of the following terms may be found in the sections indicated as
follows:
Defined
Term in Section
---- ----------
"Bankruptcy Law" 6.1
"Business Day" 10.7
"Covenant Defeasance" 9.3
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.15
"Judgment Currency" 10.16
"Legal Defeasance" 9.2
"Legal Holiday" 10.7
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"New York Paying Agent" 2.4
"Paying Agent" 2.4
"Place of Payment" 10.7
"Registrar" 2.4
"Required Currency" 10.16
"Service Agent" 2.4
5
1.3 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture to
be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company.
All other terms used in this Indenture that are defined by the TIA, defined
in the TIA by reference to another statute or defined by SEC rule have the
meanings therein assigned to them.
1.4 Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) words used herein implying any gender shall apply to each
gender; and
(6) 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.
6
ARTICLE 2
THE SECURITIES
2.1 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 in one
or more Series. All Securities of a Series shall be identical except as may be
set forth in a Board Resolution, a supplemental indenture or an Officers'
Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, Stated Maturity, record date or date
from which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of Securities
shall be equally and ratably entitled to the benefits of the Indenture.
2.2 Establishment of Terms of Series of Securities.
----------------------------------------------
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2(1) and either as to such Securities within the Series or as to
the Series generally in the case of Subsections 2.2(2) through 2.2(22) by a
Board Resolution, a supplemental indenture or an Officers' Certificate, in each
case, pursuant to authority granted under a Board Resolution:
(1) the title of the Series (which shall distinguish the Securities
of that particular Series from the Securities of any other Series);
(2) the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
(3) 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 2.7, 2.8, 2.11, 3.6 or 8.5);
(4) the date or dates on which the principal of the Securities of
the Series is payable;
(5) the rate or rates (which may be fixed or variable) per annum
or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any Interest Payment Date;
7
(6) the place or places where the principal of and interest and
premium, if any, on the Securities of the Series shall be payable, or the method
of such payment, if by wire transfer, mail or other means;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the 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
the Securities of the Series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the dates, if any, on which and the price or prices at which
the Securities of the Series will be repurchased by the Company at the option of
the Holders thereof and other detailed terms and provisions of such repurchase
obligations;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
(11) the forms of the Securities of the Series in bearer (if to be
issued outside of the United States) or fully registered form (and, if in fully
registered form, whether the Securities will be issuable as Global Securities);
(12) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
(13) the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, including, but not limited to, the
Euro, and if such currency of denomination is a composite currency other than
the Euro, the agency or organization, if any, responsible for overseeing such
composite currency;
(14) the designation of the currency, currencies or currency units
in which payment of the principal of and interest and premium, if any, on the
Securities of the Series will be made;
(15) if payments of principal of or interest or premium, if any, on
the Securities of the Series are to be made in one or more currencies or
currency units other than that or those in which such Securities are
denominated, the manner in which the exchange rate with respect to such payments
will be determined;
(16) the manner in which the amounts of payment of principal of or
interest and premium, if any, on the Securities of the Series will be
determined, if such amounts may be determined by reference to an index based on
a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;
8
(17) the provisions, if any, relating to any collateral provided for
the Securities of the Series;
(18) any addition to or change in the Events of Default which
applies to any Securities of the Series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal
amount thereof due and payable pursuant to Section 6.2;
(19) any addition to or change in the covenants set forth in
Articles 4 or 5 which applies to Securities of the Series;
(20) any depositories, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein;
(21) if applicable, that the Securities of the Series, in whole or
any specified part, shall be defeasible pursuant to Article 9; and
(22) any other terms of the Securities of the Series (which terms
shall not be inconsistent with the provisions of this Indenture, except as
permitted by Section 8.1, but which may modify or delete any provision of this
Indenture insofar as it applies to such Series).
All Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers' Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers' Certificate.
2.3 Execution and Authentication.
----------------------------
The Securities shall be executed on behalf of the Company by two Officers
of the Company or an Officer and an Assistant Secretary of the Company. Each
such signature may be either manual or facsimile. The Company's seal may be
impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt
by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication.
9
The aggregate principal amount of Securities of any Series outstanding at
any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have
received and (subject to Section 7.2) shall be fully protected in relying on:
(a) the Board Resolution, supplemental indenture hereto or Officers' Certificate
establishing the form of the Securities of that Series or of Securities within
that Series and the terms of the Securities of that Series or of Securities
within that Series, (b) an Officers' Certificate complying with Section 10.4,
and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of such Series: (a) if the Trustee, being advised in writing by
outside counsel, determines that such action may not lawfully be taken; or (b)
if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall
reasonably determine that such action would expose the Trustee to Personal
liability, or cause it to have a conflict of interest with respect to Holders of
any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Any appointment shall be evidenced by instrument
signed by an authorized officer of the Trustee, a copy of which shall be
furnished to the Company. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the
Company.
2.4 Registrar and Paying Agent.
--------------------------
The Company shall maintain in each Place of Payment for any Series of
Securities (i) an office or agency where such Securities may be presented for
registration of transfer or for exchange ("Registrar"), (ii) an office or agency
where such Securities may be presented for payment ("Paying Agent") (provided
--------
that the Company shall at all times maintain a Paying Agent in the Borough of
Manhattan, The City of New York, State of New York (the "New York Paying
Agent"), and provided, further, 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 register for the Securities
maintained by the Registrar, and (iii) an office or agency where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served ("Service Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 10.2. If the
Company acts as Paying Agent, it shall segregate the money held by it for the
payment of principal of and premium, if any, and interest
10
on the securities and hold it as a separate trust fund. The Company may change
any Paying Agent, Registrar or co-registrar without notice to any
Securityholder.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
--------
however, that no such designation or rescission shall in any manner relieve the
-------
the Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company shall give
prompt written notice to the Trustee of such designation or rescission and of
any change in the location of any such other office or agency.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company hereby appoints the Trustee as the initial Registrar,
Paying Agent and Service Agent for each Series unless another Registrar, Paying
Agent or Service Agent, as the case may be, is appointed prior to the time
Securities of that Series are first issued. The Company hereby initially
designates the Corporate Trust Office of the Trustee as such office of the
Company. The Company further designates _________________________________, as
the New York Paying Agent, with offices at_____________________________________.
2.5 Paying Agent to Hold Assets in Trust.
------------------------------------
The Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of the Holders of any Series of Securities
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest or premium (if any) on, such Series of Securities (whether such
assets have been distributed to it by the Company or any other obligor on such
Series of Securities), and the Company and the Paying Agent shall notify the
Trustee in writing of any Default by the Company (or any other obligor on such
Series of Securities) in making any such payment. The Company at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment default with respect to any Series of Securities,
upon written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Company to the Paying Agent, the Paying Agent shall have no further
liability for such assets.
2.6 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee as of each regular record
date for the payment of interest on the Securities of a Series and before each
11
related Interest Payment Date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of each Series
of Securities.
2.7 Transfer and Exchange.
---------------------
When Securities of a Series are presented to the Registrar with a request
to register the transfer thereof, the Registrar shall register the transfer as
requested if the requirements of applicable law are met, and when such
Securities of a Series are presented to the Registrar with a request to exchange
them for an equal principal amount of other authorized denominations of
Securities of the same Series, the Registrar shall make the exchange as
requested. To permit transfers and exchanges, upon surrender of any Security for
registration of transfer at the office or agency maintained pursuant to Section
2.4 hereof, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request.
If Securities are issued as Global Securities, the provisions of Section
2.15 shall apply.
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 or transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Registrar or a co-
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or a co-
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
Any exchange or transfer shall be without charge, except that the Company
may require payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 2.11, 3.6
or 8.5 hereof. The Trustee shall not be required to register transfers of
Securities of any Series or to exchange Securities of any Series for a period of
15 days before selection for redemption of such Securities. The Trustee shall
not be required to exchange or register transfers of Securities of any Series
called or being called for redemption in whole or in part, except the unredeemed
portion of such Security being redeemed in part.
2.8 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security presents evidence to the satisfaction of the Company and the Trustee
that the Security has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Security of the
same Series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding. An indemnity bond may be required by the Company
or the Trustee that is sufficient in the reasonable judgment of the Company or
the Trustee, as the case may be, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge such Holder for its out-of-pocket expenses in replacing a
Security, including the fees and expenses of the
12
Trustee. Every replacement Security shall constitute an original additional
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.
2.9 Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
and those described in this Section 2.9 as not outstanding.
If a Security is replaced pursuant to Section 2.8 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding until the
Company and the Trustee receive proof satisfactory to each of them that the
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.8.
If a Paying Agent holds on a Redemption Date or the Stated Maturity money
sufficient to pay the principal of, premium, if any, and accrued interest on
Securities payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture (provided that, if
--------
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made), then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding solely because the Company or
an Affiliate holds the Security.
2.10 When Treasury Securities Disregarded; Determination of Holders'
---------------------------------------------------------------
Action
------
In determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any direction, waiver
or consent, the Securities of any Series owned by the Company or any other
obligor on such Securities or by any Affiliate of any of them shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee actually knows are so owned shall be
so disregarded. Securities of such Series so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Securities of such Series and that the pledgee is not the Company or any other
obligor upon the Securities of such Series or any Affiliate of any of them.
2.11 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may prepare
and execute and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form, and shall carry all rights, of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and execute and the Trustee shall authenticate
13
definitive Securities in exchange for temporary Securities presented to it
without charge to the Holder.
2.12 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
for cancellation. 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. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee or, at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and at the written request of the Company,
shall dispose of all Securities surrendered for transfer, exchange, payment or
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.12. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.12, except as expressly permitted by
this Indenture.
2.13 Payment of Interest; Defaulted Interest; Computation of Interest.
----------------------------------------------------------------
Except as otherwise provided as contemplated by Section 2.2 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 is registered at the close of business
on the regular record date for such interest, as provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate establishing
the terms of such Series.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.1 hereof, to the Persons who are Securityholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the special record date, the Company shall mail or cause to be
mailed to each Securityholder, with a copy to the Trustee, a notice that states
the special record date, the payment date, and the amount of defaulted interest,
and interest payable on such defaulted interest, if any, to be paid.
Except as otherwise specified as contemplated by Section 2.2 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.
14
2.14 CUSIP Number.
------------
The Company in issuing the Securities may use one or more "CUSIP" numbers,
and if so, the Trustee shall use the CUSIP number(s) in notices of redemption or
exchange as a convenience to Holders, provided that any such notice may state
--------
that no representation is made as to the correctness or accuracy of the CUSIP
number(s) printed in the notice or on the Securities, 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 deficit in or omission of any
such numbers.
2.15 Provisions for Global Securities.
--------------------------------
(a) A Board Resolution, a supplemental indenture hereto or an
Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depository for such Global Securities or Securities.
(b) Notwithstanding any provisions to the contrary contained in
Section 2.7 of the Indenture and in addition thereto, if, and only if (A) the
Depository (i) at any time is unwilling or unable to continue as Depository for
such Global Security or ceases to be a clearing agency registered under the
Exchange Act and (ii) a successor Depository is not appointed by the Company
within 90 days after the date the Company is so informed in writing or becomes
aware of the same, or (B) a Default or an Event of Default has occurred and is
continuing with respect to the Securities represented by such Global Security,
the Company promptly will execute and deliver to the Trustee definitive
Securities, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of such definitive Securities (which the Company
will promptly execute and deliver to the Trustee) and an Officers' Certificate
to the effect that such Global Security shall be so exchangeable, will
authenticate and deliver definitive Securities, without charge, registered in
such names and in such authorized denominations as the Depository shall direct
in writing (pursuant to instructions from its direct and indirect participants
or otherwise) in an aggregate principal amount equal to the principal amount of
the Global Security with like tenor and terms. Upon the exchange of a Global
Security for definitive Securities, such Global Security shall be canceled by
the Trustee. Unless and until it is exchanged in whole or in part for definitive
Securities, as provided in this Section 2.15(b), a Global Security may not be
transferred except as a whole by the Depository with respect to such Global
Security to a nominee of such Depository, by a nominee of such Depository to
such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
(c) Any Global Security issued hereunder shall bear a legend in
substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name
of the Depository or a nominee of the Depository. This Security
is exchangeable for Securities registered in the name of a Person
other than the Depository or its nominee only in the limited
circumstances described in the Indenture, and may not be
15
transferred except as a whole by the Depository to a nominee of
the Depository, by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such a
successor Depository."
(d) The Depository, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action which a Holder is entitled to
give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of
and interest and premium, if any, on any Global Security shall be made to the
Depository or its nominee in its capacity as the Holder thereof.
(f) Except as provided in Section 2.15(e), the Company, the Trustee
and any Agent shall treat a Person as the Holder of such principal amount of
outstanding Securities of any Series represented by a Global Security as shall
be specified in a written statement of the Depository (which may be in the form
of a participants' list for such Series) with respect to such Global Security,
for purposes of obtaining any consents, declarations, waivers or directions
required to be given by the Holders pursuant to this Indenture, provided that
--------
until the Trustee is so provided with a written statement, it may treat the
Depository or any other Person in whose name a Global Security is registered as
the owner of such Global Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 2.13) any interest on such
Global Security and for all other purposes whatsoever, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
2.16 Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Registrar and any agent of the Company, the Registrar
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 2.13) any interest on such Security and
for all other purposes whatsoever, and neither the Company, the Trustee, the
Registrar nor any agent of the Company, the Registrar or the Trustee shall be
affected by notice to the contrary.
ARTICLE 3
REDEMPTION
3.1 Notices to Trustee.
------------------
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities or the
related Board Resolution, supplemental indenture or Officers' Certificate. If a
Series of Securities is redeemable and the Company elects to redeem such
16
Securities of a Series, it shall notify the Trustee of the Redemption Date and
the principal amount of Securities to be redeemed at least 45 days (unless a
shorter notice shall be satisfactory to the Trustee) before the Redemption Date.
Any such notice may be canceled at any time prior to notice of such redemption
being mailed to any Holder and shall thereby be void and of no effect.
3.2 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
Unless otherwise indicated for a particular Series of Securities by a Board
Resolution, a supplemental indenture or an Officers' Certificate, if fewer than
all of the Securities of a Series are to be redeemed, the Trustee shall select
the Securities of a Series to be redeemed pro rata, by lot or by any other
method that the Trustee considers fair and appropriate (unless the Company
specifically directs the Trustee otherwise) and, if such Securities are listed
on any securities exchange, by a method that complies with the requirements of
such exchange.
The Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed at least 35 but not more than 60 days before the
Redemption Date. Securities of a Series in denominations of $1,000 may be
redeemed only in whole. The Trustee may select for redemption portions of the
principal of Securities of a Series that have denominations larger than $1,000.
Securities of a Series and portions of them it selects shall be in amounts of
$1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2(10), the minimum principal denomination
for each Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
3.3 Notice of Redemption.
--------------------
Unless otherwise indicated for a particular Series by Board Resolution, a
supplemental indenture hereto or an Officers' Certificate, at least 30 days, and
no more than 60 days, before a Redemption Date, the Company shall mail, or cause
to be mailed, a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at his or her last address as the same appears on the
registry books maintained by the Registrar.
The notice shall identify the Securities to be redeemed (including the
CUSIP number(s) thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price, and that such redemption price shall
become due and payable on the Redemption Date;
(3) if any Security of a Series is being redeemed in part, the
portion of the principal amount of such Security of a Series to be redeemed and
that, after the Redemption Date and upon surrender of such Security of a Series,
a new Security or Securities in principal amount equal to the unredeemed portion
will be issued;
17
(4) the name and address of the Paying Agent;
(5) that Securities of a Series called for redemption must be
surrendered to the Paying Agent to collect the redemption price, and the place
or places where each such Security is to be surrendered for such payment;
(6) that, unless the Company defaults in making the redemption
payment, interest on the Securities of a Series called for redemption ceases to
accrue on the Redemption Date, and the only remaining right of the Holders of
such Securities is to receive payment of the redemption price upon surrender to
the Paying Agent of the Securities redeemed; and
(7) if fewer than all the Securities of a Series are to be
redeemed, the identification of the particular Securities of a Series (or
portion thereof) to be redeemed, as well as the aggregate principal amount of
Securities of a Series to be redeemed and the aggregate principal amount of
Securities of a Series to be outstanding after such partial redemption.
(8) the CUSIP number, if any, printed on the Securities being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's sole expense.
3.4 Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable on the
Redemption Date and at the redemption price, plus interest, if any, accrued to
the Redemption Date. Upon surrender to the Trustee or Paying Agent, such
Securities of a Series shall be paid at the redemption price, plus accrued
interest, if any, to the Redemption Date, provided that if the Redemption Date
--------
is after a regular interest payment record date and on or prior to the next
Interest Payment Date, the accrued interest shall be payable to the Holder of
the redeemed Securities registered on the relevant record date, as specified by
the Company in the notice to the Trustee pursuant to Section 3.1 hereof.
3.5 Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date (but no later than 11:00 A.M. EST on
such date), the Company shall deposit with the Paying Agent money sufficient to
pay the redemption price of and accrued interest, if any, on all Securities to
be redeemed on that date other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company to the Trustee
for cancellation.
On and after any Redemption Date, if money sufficient to pay the redemption
price of and accrued interest on Securities called for redemption shall have
been made available in accordance with the preceding paragraph and the Company
and the Paying Agent are not prohibited from paying such moneys to Holders, the
Securities called for redemption will cease
18
to accrue interest and the only right of the Holders of such Securities will be
to receive payment of the redemption price of and, subject to the proviso in
Section 3.4, accrued and unpaid interest on such Securities to the Redemption
Date. If any Security called for redemption shall not be so paid, interest will
be paid, from the Redemption Date until such redemption payment is made, on the
unpaid principal of the Security and any interest or premium (if any) not paid
on such unpaid principal, in each case, at the rate and in the manner provided
in the Securities.
3.6 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security of a Series that is redeemed in part, the
Company shall execute and the Trustee shall authenticate for a Holder a new
Security of the same Series equal in principal amount to the unredeemed portion
of the Security surrendered.
ARTICLE 4
COVENANTS
4.1 Payment of Securities.
---------------------
The Company shall pay the principal of and interest and premium, if any, on
each Series of Securities on the dates and in the manner provided in such
Securities and this Indenture.
An installment of principal or interest shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment and is not prohibited from
paying such money to the Holders pursuant to the terms of this Indenture or
otherwise.
The Company shall pay interest on overdue principal, and overdue interest,
to the extent lawful, at the rate specified in the Series of Securities.
4.2 SEC Reports.
-----------
The Company will deliver to the Trustee within 15 days after the filing of
the same with the SEC, copies of the quarterly and annual report and of the
information documents and other reports, if any, which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company will file
with the SEC, to the extent permitted, and provide the Trustee, with such
quarterly and annual reports and such information, documents and other reports
specified in Section 13 and 15(d) of the Exchange Act. The Company will also
comply with the other provisions of TIA Section 314(a).
4.3 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that they
will not at any time insist upon, or plead (as a defense or otherwise) or in any
manner whatsoever claim or take the benefit or advantage of, any stay extension
usury or other law which would prohibit or forgive the Company from paying all
or any portion of the principal of, premium, if any, and/or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter
19
in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that they may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
4.4 Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company (ending December 31), an Officers'
Certificate which complies with TIA Section 314(a)(4) stating that a review of
the activities of the Company and its Subsidiaries during such fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge each has
kept, observed, performed and fulfilled each and every covenant 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 he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest or premium, if any, on the Securities is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence and what action the Company is taking or proposes to take with
respect thereto.
4.5 Corporate Existence.
-------------------
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, in accordance with the organizational documents (as the same may be
amended from time to time) of the Company and the rights (charter and
statutory), licenses and franchises of the Company; provided, however, that the
-------- -------
Company shall not be required to preserve any such right, license or franchise,
or its corporate existence, 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 that the loss thereof is not adverse in any material respect to
the Holders.
20
ARTICLE 5
SUCCESSOR CORPORATION
5.1 Limitation on Consolidation, Merger and Sale of Assets.
------------------------------------------------------
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or Persons,
unless at the time of and after giving effect thereto (i) either (A) if the
transaction or series of transactions is a merger or consolidation, the Company
shall be the surviving Person of such merger or consolidation, or (B) the Person
formed by such consolidation or into which the Company is merged or to which the
properties and assets of the Company are transferred (any such surviving Person
or transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any state
thereof or the District of Columbia or a corporation or comparable legal entity
organized under the laws of a foreign jurisdiction, and shall expressly assume
by a supplemental indenture executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Company
(including, without limitation, the obligation to pay the principal of, and
premium and interest, if any, on the Securities and the performance of the other
covenants) under the Securities of each Series and this Indenture, and in each
case, this Indenture shall remain in full force and effect; and (ii) immediately
before and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.
(b) In connection with any consolidation, merger or transfer of
assets contemplated by this Section 5.1, the Company shall deliver, or cause to
be delivered, to the Trustee, in form and substance reasonably satisfactory to
the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.1 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
5.2 Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any transfer of all or substantially
all of the assets of the Company in accordance with Section 5.1 above, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation had been named as the
Company herein, and thereafter (except with respect to any such transfer which
is a lease) the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
21
ARTICLE 6
DEFAULTS AND REMEDIES
6.1 Events of Default.
-----------------
"Events of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided that
such Series shall not have the benefit of said Event of Default:
(1) there is a default in the payment of any principal of, or
premium, if any, on the Securities when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;
(2) there is a default in the payment of any interest on any
Security of a Series when the same becomes due and payable and the Default
continues for a period of 30 days;
(3) the Company defaults in the observance or performance of any
other covenant in the Securities of a Series or this Indenture for 60 days after
written notice from the Trustee or the Holders of not less than 25% in the
aggregate principal amount of the Securities of such Series then outstanding
which notice must specify the Default, demand that it be remedied and state the
notice is a "Notice of Default";
(4) there is a default or are defaults under one or more
agreements, instruments, mortgages, bonds, debentures or other evidences of
Indebtedness under which the Company or any Significant Subsidiary of the
Company then has outstanding Indebtedness in excess of $25 million, individually
or in the aggregate, and either (a) such Indebtedness is already due and payable
in full or (b) such default or defaults have resulted in the acceleration of the
Maturity of such Indebtedness;
(5) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due;
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
22
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of the property of the Company or any
Significant Subsidiary; or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and the order or decree remains unstayed and in effect for 90
consecutive days; or
(7) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.2(18).
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.
The Trustee may withhold notice of any Default (except in payment of
principal or premium, if any, or interest on the Securities) to the Holders of
the Securities of any Series in accordance with Section 7.5 when a Default is
cured, it ceases to exist.
6.2 Acceleration.
------------
If an Event of Default with respect to Securities of any Series at the time
outstanding (other than an Event of Default arising under Section 6.1(6) or (7))
occurs and is continuing, the Trustee by written notice to the Company, or the
Holders of not less than 25% in aggregate principal amount of the Securities of
that Series then outstanding may by written notice to the Company and the
Trustee declare that the entire principal amount of all the Securities of that
Series then outstanding plus accrued and unpaid interest to the date of
acceleration are immediately due and payable, in which case such amounts shall
become immediately due and payable; provided, however, that after such
-------- -------
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Securities of that Series may rescind and annul such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid and (iii) if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.1(6) or (7) with respect to the
Company occurs, such principal, premium, if any, and interest amount with
respect to all of the Securities of that Series shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Securities of that Series.
23
6.3 Remedies.
--------
If an Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal of,
or premium, if any, and interest on the Securities of that Series or to enforce
the performance of any provision of the Securities of that Series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities of that Series or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
6.4 Waiver of Past Defaults and Events of Default.
---------------------------------------------
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority in
principal amount of the Securities of any Series then outstanding have the right
to waive any existing Default or Event of Default with respect to such Series or
compliance with any provision of this Indenture (with respect to such Series) or
the Securities of such Series. Upon any such waiver, such Default with respect
to such Series shall cease to exist, and any Event of Default with respect to
such Series arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto. This
Section 6.4 shall be in lieu of TIA Section 316(a)(1)(B), and TIA Section
316(a)(1)(B) is hereby expressly excluded from this Indenture and Section as
permitted by the TIA.
6.5 Control by Majority.
-------------------
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority in
principal amount of the Securities of any Series then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee by this
Indenture with respect to such Series. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder or that may involve the Trustee in Personal liability; provided
--------
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction. This Section 6.5 shall be in lieu of TIA
Section 316(a)(1)(A), and TIA Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture and Section as permitted by the TIA.
6.6 Limitation on Suits.
-------------------
Subject to Section 6.7 below, a Securityholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Securities
of a Series unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to the Securities of that Series;
24
(2) the Holders of at least 25% in aggregate principal amount of
the Securities of such Series then outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or expense to
be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Securities of such Series then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
6.7 Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of a Series to receive payment of principal of, and
premium, if any, and interest of the Security of such Series on or after the
respective due dates expressed in the Security of such Series, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
6.8 Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, premium or interest
specified in Section 6.1(1) or (2) hereof with respect to Securities of any
Series at the time outstanding occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
(or any other obligor on the Securities of that Series) for the whole amount of
unpaid principal and premium, if any, and accrued interest remaining unpaid,
together with interest on overdue principal and premium, if any, and, to the
extent that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate then borne by the Securities of that
Series, and such further amounts 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, as set forth
in Section 7.7.
6.9 Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents,
and take other actions (including sitting on a committee of creditors) as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Securities), any of their respective creditors or any of their respective
property and shall be entitled and empowered to collect and receive any monies
or other property payable
25
or deliverable on any such claims and to distribute the same after deduction of
its charges and expenses to the extent that any such charges and expenses are
not paid out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Securityholder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities of a Series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceedings.
6.10 Priorities.
----------
If the Trustee collects any money pursuant to this Article 6, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Securityholders for amounts then due and unpaid for principal,
premium, if any, and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities; for principal and any premium and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder a notice that states
the record date, the payment date and amount to be paid.
6.11 Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 hereof or a suit by Holders of more than 10% in principal amount of the
Securities of a Series then outstanding.
26
ARTICLE 7
TRUSTEE
7.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
Person would exercise or use under the same circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no covenants or obligations shall
be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture but, in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.2 and 6.5 hereof.
(d) 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 rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity satisfactory to
it against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (d) of this Section 7.1 shall govern every provision of this
Indenture that in any way relates to the Trustee.
27
(f) The Trustee and Paying Agent shall not be liable for interest
on any money received by it except as the Trustee and Paying Agent may agree in
writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by the law.
(g) The Paying Agent, the Registrar and any authenticating agent
shall be entitled to the protections, immunities and standard of care set forth
in paragraphs (a), (b), (c), (d) and (f) of this Section 7.1 and in Section 7.2
with respect to the Trustee.
7.2 Rights of Trustee.
-----------------
(a) Subject to Section 7.1 hereof:
(1) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 10.5 hereof. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(3) The Trustee may act through agents and attorneys and shall
not be responsible for the misconduct or negligence of any agent appointed by it
with due care.
(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(5) The Trustee may consult with counsel reasonably acceptable
to the Trustee, which may be counsel to the Company, and the advice or opinion
of such counsel as to matters of law shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(6) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(7) The Trustee shall not be deemed to have knowledge of any
fact or matter (including, without limitation, a Default or Event of Default)
unless such fact or matter is known to a Responsible Officer of the Trustee.
(8) Unless otherwise expressly provided herein or in the
Securities of a Series or the related Board Resolution, supplemental indenture
or Officers' Certificate, the Trustee shall not have any responsibility with
respect to reports, notices, certificates or other
28
documents filed with it hereunder, except to make them available for inspection,
at reasonable times, by Securityholders, it being understood that delivery of
such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (except as set forth in Section 4.4).
7.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliate thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
7.4 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities (except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture and authenticate the Securities
and perform its obligations hereunder), it shall not be accountable for the
Company's use of the proceeds from the sale of Securities or any money paid to
the Company pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Securities other than its certificates of
authentication.
7.5 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to the Trustee, the Trustee
shall mail to each Securityholder of the Securities of that Series notice of the
Default or the Event of Default, as the case may be, within 90 days after it
occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default (except if such Default or Event of Default has
been validly cured or waived before the giving of such notice). Except in the
case of a Default or an Event of Default in payment of the principal of, or
premium, if any, or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as the Board of Directors of the Trustee, the
executive committee or any trust committee of such board and/or its Responsible
Officers in good faith determine(s) that withholding the notice is in the
interests of the Securityholders of that Series.
7.6 Reports by Trustee to Holders.
-----------------------------
If and to the extent required by the TIA, within 60 days after April 1 of
each year, commencing the April 1 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such April
1 that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and any stock exchange on which the Securities of that
Series are listed. The Company
29
shall promptly notify the Trustee when the Securities of any Series are listed
on any stock exchange or any delisting thereof, and the Trustee shall comply
with TIA Section 313(d).
7.7 Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee within 45 days after receipt of request for
all reasonable out-of-pocket disbursement expenses incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless against,
any and all loss or liability incurred by it in connection with the acceptance
or performance of its duties under this Indenture including the reasonable 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 notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations. Notwithstanding the foregoing, the
Company need not reimburse the Trustee for any expense or indemnify it against
any loss or liability incurred by the Trustee through its negligence or bad
faith. To secure the payment obligations of the Company in this Section 7.7, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee except such money or property held in
trust to pay principal of and interest and premium (if any) on particular
Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.7, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
7.8 Replacement of Trustee.
----------------------
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing at least 90 days in advance of
such resignation.
The Holders of a majority in principal amount of the outstanding Securities
of any Series may remove the Trustee with respect to that Series by notifying
the removed Trustee in writing and may appoint a successor Trustee with respect
to that Series with the consent of the Company, which consent shall not be
unreasonably withheld. The Company may remove the Trustee with respect to that
Series at its election if:
(1) the Trustee fails to comply with, or ceases to be eligible
under, Section 7.10 hereof;
30
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a Custodian or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee with respect to any Series of Securities for any reason, the Company
shall promptly appoint, by Board Resolution, a successor Trustee.
If a successor Trustee with respect to the Securities of one or more Series
does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the outstanding Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of one or more Series fails
to comply with Section 7.10 hereof, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately following such delivery,
(i) the retiring Trustee with respect to one or more Series shall, subject to
its rights under Section 7.7 hereof, transfer all property held by it as Trustee
with respect to such Series to the successor Trustee, (ii) the resignation or
removal of the retiring Trustee shall become effective, and (iii) the successor
Trustee with respect to such Series shall have all the rights, powers and duties
of the Trustee under this Indenture. A successor Trustee with respect to the
Securities of one or more Series shall mail notice of its succession to each
Securityholder of such Series.
7.9 Successor Trustee by Consolidation, Merger or Conversion.
--------------------------------------------------------
If the Trustee, or any Agent, consolidates with, merges or converts into,
or transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee or Agent, as the case may be.
7.10 Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Sections 310(a)(1), (2) and (5) in every respect. The Trustee (or in the
case of a Trustee that is a Person included in a bank holding company system,
the related bank holding company) shall have a combined capital and surplus of
at least $100,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA Section 310(b), including the
provision in Section 310(b)(1). In addition, if the Trustee is a Person included
in a bank holding company system, the Trustee, independently of such bank
holding company, shall meet the capital requirements of TIA Section 310(a)(2).
If at any time the Trustee shall cease to
31
be eligible in accordance with the provisions of this Section 7.10, it shall
resign immediately in the manner and with the effect specified in this Article
7.
7.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
7.12 Paying Agents.
-------------
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to it and the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 7.12:
(1) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Securities
(whether such sums have been paid to it by the Company or by any obligor on the
Securities) in trust for the benefit of Holders of the Securities or the
Trustee;
(2) that it will at any time during the continuance of any Event
of Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(3) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Securities) in the payment of any installment of the principal of, premium, if
any, or interest on, the Securities when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
8.1 Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series
without notice to or consent of any Securityholder:
(1) to comply with Section 5.1 hereof;
(2) to provide for uncertificated Securities in addition to
certificated Securities;
(3) to comply with any requirements of the SEC under the TIA;
32
(4) to cure any ambiguity, defect or inconsistency, or to make
any other change herein or in the Securities that does not materially and
adversely affect the rights of any Securityholder;
(5) to provide for the issuance of and establish the form and
terms and conditions of Securities of any Series as permitted by this Indenture;
or
(6) 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.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee shall not be obligated to enter into
any such supplemental indenture which adversely affects its own rights, duties
or immunities under this Indenture.
8.2 With Consent of Holders.
-----------------------
(a) The Company, when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture or the Securities of one or more
Series with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities of such Series affected
by such amendment or supplement without notice to any Securityholder. The
Holders of not less than a majority in aggregate principal amount of the
outstanding Securities of each such Series affected by such amendment or
supplement may waive compliance in a particular instance by the Company with any
provision of this Indenture or the Securities of such Series without notice to
any Securityholder. Subject to Section 8.4, without the consent of each
Securityholder affected, however, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.4, may not:
(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver to this Indenture or the Securities;
(2) reduce the rate of or change the time for payment of interest
on any Security;
(3) reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the payment of
any sinking fund or analogous obligation;
(4) make any Security payable in money other than that stated in
the Security;
(5) change the amount or time of any payment required by the
Securities or reduce the premium payable upon any redemption of the Securities,
or change the time before which no such redemption may be made;
33
(6) waive a Default or Event of Default in the payment of the
principal of or interest or premium, if any, on any Security (except a
rescission of acceleration of the Securities of any Series by the Holders of at
least a majority in principal amount of the outstanding Securities of such
Series and a waiver of the payment default that resulted from such
acceleration);
(7) waive a redemption payment with respect to any Security or
change any of the provisions with respect to the redemption of any Securities;
(8) make any changes in Sections 6.4 or 6.7 hereof or this
Section 8.2; except to increase any percentage of Securities the Holders of
which must consent to any matter; or
(9) take any other action otherwise prohibited by this Indenture
to be taken without the consent of each Holder affected thereby.
(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Securityholders as aforesaid and upon receipt by
the Trustee of the documents described in Section 8.6 hereof, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
(c) It shall not be necessary for the consent of the Holders under
this section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment or supplement under this Section becomes
effective, the Company shall mail to Securityholders a notice briefly describing
the amendment or supplement. Any failure of the Company to mail any such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any supplemental indenture.
8.3 Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
8.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement, waiver or other action becomes effective, a
consent to it by a Holder of a Security is a continuing consent conclusive and
binding upon such Holder and every subsequent Holder of the same Security or
portion thereof, and of any Security issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Security. Any such Holder or subsequent Holder, however, may
revoke the consent as to his Security or portion of a Security, if the Trustee
receives the notice of revocation before the date the amendment, supplement,
waiver or other action becomes effective.
34
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date.
After an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (9) of Section 8.2 hereof. In that case the amendment,
supplement, waiver or other action shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
provided that any such waiver shall not impair or affect the right of
--------
any Holder to receive payment of principal of and interest and premium (if any)
on a Security, on or after the respective due dates expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
8.5 Notation on or Exchange of Securities.
--------------------------------------
If an amendment, supplement, or waiver changes the terms of a Security of
any Series, the Trustee may request the Holder of such Security to deliver it to
the Trustee. In such case, the Trustee shall place an appropriate notation on
such Security about the changed terms and return it to the Holder.
Alternatively, the Company in exchange for such Security may issue and the
Trustee shall authenticate a new security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
8.6 Trustee to Sign Amendments, Etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.1 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture.
The Company may not sign an amendment or supplement until the Board of Directors
of the Company approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
9.1 Discharge of Indenture.
----------------------
35
The Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the obligations
referred to in the last paragraph of this Section 9.1, if there shall have been
canceled by the Trustee or delivered to the Trustee for cancellation all
Securities of such Series theretofore authenticated and delivered (other than
any Securities of such Series that are asserted to have been destroyed, lost or
stolen and that shall have been replaced as provided in Section 2.8 hereof) and
the Company has paid all sums payable by it hereunder or deposited all required
sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in a writing
prepared by or on behalf of the Company the discharge of the Company's
obligations under the Securities of such Series and this Indenture except for
those surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.7, 9.5 and 9.6 hereof shall survive.
9.2 Legal Defeasance.
----------------
The Company may at its option, by Board Resolution, be discharged from its
obligations with respect to the Securities of any Series on the date the
conditions set forth in Section 9.4 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Securities of such Series 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, subject to
Section 9.6 hereof, execute proper instruments acknowledging the same, as are
delivered to it by the Company), 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 funds
described in Section 9.4 hereof and as more fully set forth in such section,
payments in respect of the principal of, premium, if any, and interest on the
Securities of such Series when such payments are due, (B) the Company's
obligations with respect to the Securities of such Series under Sections 2.4,
2.5, 2.6, 2.7, 2.8 and 2.9 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.7 hereof) and (D) this Article 9. Subject
to compliance with this Article 9, the Company may exercise its option under
this Section 9.2 with respect to the Securities of any Series notwithstanding
the prior exercise of its option under Section 9.3 below with respect to the
Securities of such Series.
9.3 Covenant Defeasance.
-------------------
At the option of the Company, pursuant to a Board Resolution, the Company
shall be released from its obligations with respect to the outstanding
Securities of any Series under Sections 4.2 through 4.5 hereof, inclusive, and
Section 5.1 hereof, with respect to the outstanding Securities of such Series,
on and after the date the conditions set forth in Section 9.4 hereof are
satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that 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
specified section or portion thereof, whether directly or indirectly by reason
of any reference elsewhere herein to any such specified Section
36
or portion thereof or by reason of any reference in any such specified section
or portion thereof to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of any Series shall be
unaffected thereby.
9.4 Conditions to Legal Defeasance or Covenant Defeasance.
-----------------------------------------------------
The following shall be the conditions to application of Section 9.2 or
Section 9.3 hereof to the outstanding Securities of a Series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article 9 applicable to it) as 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 the Securities, (A) money in an amount, or (B)
U.S. Government Obligations or Foreign Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and accrued interest on the
outstanding Securities of such Series at the Stated Maturity of such principal,
premium, if any, or interest, or on dates for payment and redemption of such
principal, premium, if any, and interest selected in accordance with the terms
of this Indenture and of the Securities of such Series;
(2) no Event of Default or Default with respect to the
Securities of such Series shall have occurred and be continuing on the date of
such deposit, or shall have occurred and be continuing 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
under any Bankruptcy Law applicable to the Company in respect of such deposit as
specified in the Opinion of Counsel identified in paragraph (8) below (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company is a party or by which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register as an
investment company under the Investment Company Act of 1940, as amended;
(6) in the case of an election under Section 9.2 above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has
37
received from, or there has been published by, the Internal Revenue Service a
ruling to the effect that or (ii) there has been a change in any applicable
Federal income tax law with the effect that, and such opinion shall confirm
that, the Holders of the outstanding Securities of such Series or Persons in
their positions will not recognize income, gain or loss for Federal income tax
purposes solely as a result of such Legal Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner, including as a
result of prepayment, and at the same times as would have been the case if such
Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.3 hereof, 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;
(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 in this Article 9 relating to either the Legal Defeasance
under Section 9.2 above or the Covenant Defeasance under Section 9.3 hereof (as
the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment
under terms mutually satisfactory to the Company and the Trustee all amounts
then due to the Trustee pursuant to Section 7.7 hereof.
9.5 Deposited Money and U.S. and Foreign Government Obligations to be Held
----------------------------------------------------------------------
in Trust; Other Miscellaneous Provisions.
----------------------------------------
All money, U.S. Government Obligations and Foreign Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section
9.4 hereof in respect of the outstanding Securities 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 as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal, premium, if any, and accrued
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations and
Foreign Government Obligations deposited pursuant to Section 9.4 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Securities.
Anything in this Article 9 to the contrary notwithstanding, but subject to
payment of any of its outstanding fees and expenses, the Trustee shall deliver
or pay to the Company from time
38
to time upon Company Request any money, U.S. Government Obligations or Foreign
Government Obligations held by it as provided in Section 9.4 hereof 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 Legal Defeasance or Covenant Defeasance.
9.6 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in accordance with
Section 9.1, 9.2, 9.3 or 9.4 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money,
U.S. Government Obligations or Foreign Government Obligations, as the case may
be, in accordance with Section 9.1, 9.2, 9.3 or 9.4 hereof; provided, however,
-------- -------
that if the Company has made any payment of principal of, premium, if any, or
accrued interest on any Securities because of the reinstatement of their
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, U.S. Government
Obligations or Foreign Government Obligations held by the Trustee or Paying
Agent.
9.7 Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture, all
moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.1 hereof, to the Company, and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
9.8 Moneys Held by Trustee.
----------------------
Any moneys deposited with the Trustee or any Paying Agent or then held by
the Company in trust for the payment of the principal of, or premium, if any, or
interest on any Security that are not applied but remain unclaimed by the Holder
of such Security for two years after the date upon which the principal of, or
premium, if any, or interest on such Security shall have respectively become due
and payable shall be repaid to the Company upon Company Request, or if such
moneys are then held by the Company in trust, such moneys shall be released from
such trust; and the Holder of such Security entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company for
the payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
-------- -------
Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, either mail to each
Securityholder affected, at the address shown in the register of the Securities
maintained by the Registrar or cause to be published once a week for two
successive weeks, in a newspaper published in the English language, customarily
published each Business Day and of general circulation in the City of New York,
New York, a notice that such money remains unclaimed and
39
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such moneys
then remaining will be repaid to the Company. After payment to the Company or
the release of any money held in trust by the Company, Securityholders entitled
to the money must look only to the Company for payment as general creditors
unless applicable abandoned property law designates another Person.
ARTICLE 10
MISCELLANEOUS
10.1 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA which 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.
10.2 Notices.
-------
Any notice or communication shall be given in writing and delivered in
Person, sent by facsimile (and receipt confirmed by telephone or electronic
transmission report), delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Dataware Technologies, Inc.
Xxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx
Copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the Trustee:
_____________________
_____________________
_____________________
Fax: _________________
40
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
receipt is confirmed by telephone or electronic transmission report, if sent by
facsimile; and three (3) Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
such Securityholder by first-class mail, postage prepaid, at such
Securityholder's address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication to a Securityholder is mailed in the manner provided
above, it shall be deemed duly given, three Business Days after such mailing,
whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
In the case of Global Securities, notices or communications to be given to
Securityholders shall be given to the Depository, in accordance with its
applicable policies as in effect from time to time.
In addition to the manner provided for in the foregoing provisions, notices
or communications to Securityholders shall be given by the Company by release
made to Reuters Economic Services and Bloomberg Business News.
10.3 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
any other Series. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
10.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 10.5 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
41
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.5 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
10.5 Statement Required in Certificate and Opinion.
---------------------------------------------
Each certificate and opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 4.4
hereof) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
10.6 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
10.7 Business Days; Legal Holidays; Place of Payment.
-----------------------------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is
a Saturday, a Sunday, a federally-recognized holiday or a day on which banking
institutions are not authorized or required by law or executive order to be open
in the Commonwealth of Massachusetts.
If a payment date is a Legal Holiday at a Place of Payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period. "Place of Payment" means
the place or places where the principal of and any premium and interest on the
Securities of a Series are payable as specified as contemplated by Section 2.2.
If the regular record date is a Legal Holiday, the record date shall not be
affected.
10.8 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
42
10.9 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
10.10 No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
10.11 Successors.
----------
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns, whether so expressed or not.
All agreements of the Trustee, any additional trustee and any Paying Agents in
this Indenture shall bind their respective successors and assigns.
10.12 Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent one
and the same agreement.
10.13 Table of Contents, Headings, Etc.
---------------------------------
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
10.14 Severability.
------------
Each provision of this Indenture shall be considered severable and if for
any reason any provision which is not essential to the effectuation of the basic
purpose of this Indenture or 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 and a Holder
shall have no claim thereto against any party hereto.
10.15 Securities in a Foreign Currency or in Euro.
-------------------------------------------
Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this
Indenture with respect to a particular Series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all Series or all
Series affected by a particular action at the time outstanding and, at such
time, there are outstanding Securities of any Series which are denominated in a
coin or currency other than Dollars (including Euros), then the principal amount
of Securities of such Series which shall be
43
deemed to be outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the Market Exchange
Rate at such time. For purposes of this Section 10.15, "Market Exchange Rate"
shall mean the noon Dollar buying rate in New York City for cable transfers of
that currency as published by the Federal Reserve Bank of New York; provided,
--------
however, in the case of Euros, Market Exchange Rate shall mean the rate of
-------
exchange determined by the Commission of the European Union (or any successor
thereto) as published in the Official Journal of the European Union (such
publication or any successor publication, the "Journal"). If such Market
Exchange Rate is not available for any reason with respect to such currency, the
Trustee shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York or, in the case of Euros,
the rate of exchange as published in the Journal, as of the most recent
available date, or quotations or, in the case of Euros, rates of exchange from
one or more major banks in The City of New York or in the country of issue of
the currency in question or, in the case of Euros, in Luxembourg or such other
quotations or, in the case of Euros, rates of exchange as the Trustee, upon
consultation with the Company, shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Company and all Holders.
10.16 Judgment Currency.
-----------------
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or premium (if any) or other amount on the Securities of any Series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City
of New York the Required Currency with the Judgment Currency on the New York
Banking Day preceding the day on which final unappealable judgment is entered
and (b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full amount
of the Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal
44
holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
45
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DATAWARE TECHNOLOGIES, INC.
By:________________________________________
Name:
Its:
[Name of Trustee]
By:________________________________________
Name:
Its:
46
Commonwealth of Massachusetts )
) ss.:
county of _______________ )
On this, the ____ day of _______________, 2000, before me, a Notary Public
in and for said County and State, the undersigned officer, personally appeared
________________________________, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument and acknowledged
that he or she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________________
Notary Public
[SEAL]
My Commission Expires:
_________________________________
Commonwealth of Massachusetts )
) ss.:
county of _______________ )
On this, the ____ day of _______________, 2000, before me, a Notary Public
in and for said County and State, the undersigned officer, personally appeared
________________________________, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument and acknowledged
that he or she executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________________
Notary Public
[SEAL]
My Commission Expires:
_________________________________
47
