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EXHIBIT 4.2
REPUBLIC SERVICES, INC., AS ISSUER,
AND
THE BANK OF NEW YORK, AS TRUSTEE
------------------------
INDENTURE
DATED AS OF MAY __, 1999
------------------------
___% NOTES DUE 200_
___% NOTES DUE 200_
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REPUBLIC SERVICES, INC.
RECONCILIATION AND TIE WITH THE TRUST INDENTURE ACT OF 1939
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1).......................................... 609
(a)(2)................................................. 609
(b).................................................... 608, 610
Section 311(a)............................................. 613
Section 312(a)............................................. 701
(b).................................................... 702
(c).................................................... 702
Section 313(a)............................................. 703(a)
(b).................................................... 703(a)
(c).................................................... 703(a)
(d).................................................... 703(b)
Section 314(a)............................................. 704
(a)(4)................................................. 705
(c)(1)................................................. 103
(c)(2)................................................. 103
(e).................................................... 103
Section 315(a)............................................. 601
(b).................................................... 602
(c).................................................... 601(a)
(d).................................................... 601, 603
(e).................................................... 514
Section 316(a)(last sentence).............................. 101 ("Outstanding")
(a)(1)(A).............................................. 502, 512
(a)(1)(B).............................................. 513
(b).................................................... 508
(c).................................................... 105
Section 317(a)(1).......................................... 503
(a)(2)................................................. 504
(b).................................................... 1003
Section 318(a)............................................. 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................................1
Section 101. Definitions......................................................................................1
"Affiliate"................................................................................................2
"Applicable Procedures"....................................................................................2
"Attributable Debt"........................................................................................2
"Bankruptcy Law"...........................................................................................3
"Board of Directors".......................................................................................3
"Board Resolution".........................................................................................3
"Book-Entry Security"......................................................................................3
"Business Day".............................................................................................3
"Capital Stock"............................................................................................3
"Code".....................................................................................................3
"Commission"...............................................................................................3
"Company"..................................................................................................4
"Company Request"or "Company Order"........................................................................4
"Comparable Treasury Issue"................................................................................4
"Comparable Treasury Price"................................................................................4
"Consolidated Net Tangible Assets".........................................................................4
"Consolidation"............................................................................................5
"Corporate Trust Office"...................................................................................5
"Default"..................................................................................................5
"Depositary"...............................................................................................5
"Event of Default".........................................................................................5
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"Exchange Act".............................................................................................5
"Exempted Debt"............................................................................................5
"Fair Market Value"........................................................................................5
"Funded Debt"..............................................................................................6
"Generally Accepted Accounting Principles"or "GAAP"........................................................6
"Global Securities"........................................................................................6
"Guarantee"................................................................................................6
"Holder"...................................................................................................6
"Incur"....................................................................................................6
"Indebtedness".............................................................................................6
"Indenture"................................................................................................7
"Indenture Obligations"....................................................................................7
"Independent Investment Banker"............................................................................7
"Interest Payment Date"....................................................................................7
"Issue Date"...............................................................................................7
"Lien".....................................................................................................7
"Maturity".................................................................................................7
"Xxxxx'x"..................................................................................................8
"Officers' Certificate"....................................................................................8
"Opinion of Counsel".......................................................................................8
"Opinion of Independent Counsel"...........................................................................8
"Outstanding"..............................................................................................8
"Paying Agent".............................................................................................9
"Person"...................................................................................................9
"Predecessor Security".....................................................................................9
"Preferred Stock"..........................................................................................9
"Principal Property"......................................................................................10
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"Redemption Date".........................................................................................10
"Redemption Price"........................................................................................10
"Reference Treasury Dealer"...............................................................................10
"Reference Treasury Dealer Quotations"....................................................................10
"Regular Record Date".....................................................................................10
"Responsible Officer".....................................................................................11
"Restricted Subsidiary"...................................................................................11
"S&P".....................................................................................................11
"Securities Act"..........................................................................................11
"Senior Indebtedness".....................................................................................11
"Special Record Date".....................................................................................11
"Stated Maturity".........................................................................................11
"Subsidiary"..............................................................................................11
"Temporary Cash Investments"..............................................................................11
"Treasury Rate"...........................................................................................12
"Trustee".................................................................................................12
"Trust Indenture Act".....................................................................................13
"Voting Stock"............................................................................................13
Section 102. Other Definitions...............................................................................13
Section 103. Compliance Certificates and Opinions............................................................13
Section 104. Form of Documents Delivered to Trustee..........................................................14
Section 105. Acts of Holders.................................................................................15
Section 106. Notices, etc., to the Trustee, the Company......................................................16
Section 107. Notice to Holders; Waiver.......................................................................17
Section 108. Conflict with Trust Indenture Act...............................................................17
Section 109. Effect of Headings and Table of Contents........................................................18
Section 110. Successors and Assigns..........................................................................18
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Section 111. Separability Clause.............................................................................18
Section 112. Benefits of Indenture...........................................................................18
Section 113. Governing Law...................................................................................18
Section 114. Legal Holidays..................................................................................18
Section 115. Independence of Covenants.......................................................................19
Section 116. Schedules and Exhibits..........................................................................19
Section 117. Counterparts....................................................................................19
ARTICLE TWO SECURITY FORMS......................................................................................20
Section 201. Forms Generally.................................................................................20
ARTICLE THREE THE SECURITIES....................................................................................21
Section 301. Title and Terms.................................................................................21
Section 302. Denominations...................................................................................22
Section 303. Execution, Authentication, Delivery and Dating..................................................22
Section 304. Temporary Securities............................................................................23
Section 305. Registration, Registration of Transfer and Exchange.............................................24
Section 306. Book Entry Provisions for Global Securities.....................................................25
Section 307. Mutilated, Destroyed, Lost and Stolen Securities................................................27
Section 308. Payment of Interest; Interest Rights Preserved..................................................28
Section 309. CUSIP Numbers...................................................................................29
Section 310. Persons Deemed Owners...........................................................................29
Section 311. Cancellation....................................................................................29
Section 312. Computation of Interest.........................................................................30
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE.................................................................31
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance....................................31
Section 402. Defeasance and Discharge........................................................................31
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Section 403. Covenant Defeasance.............................................................................31
Section 404. Conditions to Defeasance or Covenant Defeasance.................................................32
Section 405. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions.....................................................................................34
Section 406. Reinstatement...................................................................................35
ARTICLE FIVE REMEDIES...........................................................................................36
Section 501. Events of Default...............................................................................36
Section 502. Acceleration of Maturity; Rescission and Annulment..............................................37
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................................38
Section 504. Trustee May File Proofs of Claim................................................................39
Section 505. Trustee May Enforce Claims without Possession of Securities.....................................40
Section 506. Application of Money Collected..................................................................41
Section 507. Limitation on Suits.............................................................................41
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.......................42
Section 509. Restoration of Rights and Remedies..............................................................42
Section 510. Rights and Remedies Cumulative..................................................................42
Section 511. Delay or Omission Not Waiver....................................................................43
Section 512. Control by Holders..............................................................................43
Section 513. Waiver of Past Defaults.........................................................................43
Section 514. Undertaking for Costs...........................................................................44
Section 515. Waiver of Stay, Extension or Usury Laws.........................................................44
Section 516. Remedies Subject to Applicable Law..............................................................44
ARTICLE SIX THE TRUSTEE.........................................................................................45
Section 601. Duties of Trustee...............................................................................45
Section 602. Notice of Defaults..............................................................................46
Section 603. Certain Rights of Trustee.......................................................................46
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Section 604. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof.................................................................48
Section 605. Trustee and Agents May Hold Securities; Collections; etc........................................49
Section 606. Money Held in Trust.............................................................................49
Section 607. Compensation and Indemnification of Trustee and Its Prior Claim.................................49
Section 608. Conflicting Interests...........................................................................50
Section 609. Trustee Eligibility.............................................................................50
Section 610. Resignation and Removal; Appointment of Successor Trustee.......................................50
Section 611. Acceptance of Appointment by Successor..........................................................52
Section 612. Merger, Conversion, Consolidation or Succession to Business.....................................53
Section 613. Preferential Collection of Claims Against Company...............................................53
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................54
Section 701. Company to Furnish Trustee Names and Addresses of Holders.......................................54
Section 702. Disclosure of Names and Addresses of Holders....................................................54
Section 703. Reports by Trustee..............................................................................54
Section 704. Reports by Company..............................................................................55
Section 705. Statement as to Compliance......................................................................55
Section 706. Statement by Officers as to Default.............................................................55
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS.............................................................56
Section 801. Company May Consolidate, etc., Only on Certain Terms............................................56
Section 802. Successor Substituted...........................................................................57
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................58
Section 901. Supplemental Indentures and Agreements without Consent of Holders...............................58
Section 902. Supplemental Indentures and Agreements with Consent of Holders..................................59
Section 903. Execution of Supplemental Indentures and Agreements.............................................60
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Section 904. Effect of Supplemental Indentures...............................................................61
Section 905. Conformity with Trust Indenture Act.............................................................61
Section 906. Reference in Securities to Supplemental Indentures..............................................61
Section 907. Notice of Supplemental Indentures...............................................................61
ARTICLE TEN COVENANTS...........................................................................................62
Section 1001. Payment of Principal, Premium and Interest.....................................................62
Section 1002. Maintenance of Office or Agency................................................................62
Section 1003. Money for Security Payments to Be Held in Trust................................................62
Section 1004. Corporate Existence............................................................................64
Section 1005. Restrictions on Liens..........................................................................64
Section 1006. Limitation on Sale and Leaseback Transactions..................................................66
Section 1007. Provisions of Financial Statements.............................................................67
Section 1008. Waiver of Certain Covenants....................................................................67
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................................68
Section 1101. Rights of Redemption...........................................................................68
Section 1102. Applicability of Article.......................................................................68
Section 1103. Election to Redeem; Notice to Trustee..........................................................68
Section 1104. Selection by Trustee of Securities to Be Redeemed..............................................68
Section 1105. Notice of Redemption...........................................................................69
Section 1106. Deposit of Redemption Price....................................................................70
Section 1107. Securities Payable on Redemption Date..........................................................70
Section 1108. Securities Redeemed or Purchased in Part.......................................................71
ARTICLE TWELVE SATISFACTION AND DISCHARGE.......................................................................72
Section 1201. Satisfaction and Discharge of Indenture........................................................73
Section 1202. Application of Trust Money.....................................................................73
TESTIMONIUM
SIGNATURES
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INDENTURE, dated as of May __, 0000, xxxxxxx Xxxxxxxx Services, Inc.
and The Bank of New York, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of two separate series of
securities under this Indenture: (i) an issue of ___% Notes due 200__ in the
aggregate principal amount of $____ million and (ii) an issue of ___% Notes due
200_ in the aggregate principal amount of $____ million (together, the
"Securities"), of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture and the Securities;
This Indenture is subject to, and shall be governed by, the provisions
of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act;
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid obligations of the Company and (ii) this
Indenture a valid agreement of the Company;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
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(d) 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;
(e) all references to $, US$, dollars or United States dollars shall
refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles refer to
this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in Article
Four.
"Affiliate" means, with respect to any specified Person: (i) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; (ii) any other Person that
owns, directly or indirectly, 5% or more of such specified Person's Capital
Stock or any officer or director of any such specified Person or other Person
or, with respect to any natural Person, any person having a relationship with
such Person by blood, marriage or adoption not more remote than first cousin; or
(iii) any other Person 5% or more of the Voting Stock of which is beneficially
owned or held directly or indirectly by such specified Person. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security to the extent
applicable to such transaction and as in effect at the time of such transfer or
transaction.
"Attributable Debt" means, when used in connection with a sale and
leaseback transaction, at any date of determination, the product of (1) the net
proceeds from such sale and leaseback transaction multiplied by (2) a fraction,
the numerator of which is the number of full years of the term of the lease
relating to the property involved in such sale and leaseback transaction
(without regard to any options to renew or extend such term) remaining at the
date of the making of such computation and the denominator of which is the
number of full years of the term of such lease measured from the first day of
such term.
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"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code of 1978,
as amended, or any similar United States federal or state law or foreign law
relating to bankruptcy, insolvency, receivership, winding up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee or subcommittee of such Board, except as the
context may otherwise require.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company, as the case may be, to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Book-Entry Security" means any Global Securities bearing the legend
specified in Exhibits A and B evidencing all or part of a series of Securities,
authenticated and delivered to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions or trust companies in Xxx Xxxx Xxxx xxx Xxxx
Xxxxxxxxxx, Xxxxxxx are authorized or obligated by law to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (including partnership interests) in (however
designated) the equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Securities Act, Exchange Act and Trust
Indenture Act then the body performing such duties at such time.
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"Company" means Republic Services, Inc., until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
President, its Chief Executive Officer, its Chief Financial Officer or a Vice
President (regardless of Vice Presidential designation), and by any one of its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and
delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term (the "Remaining Life") of the Securities to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of a
comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(A) the average of five Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (B) if the Independent Investment Banker obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such quotations.
"Consolidated Net Tangible Assets" means, as of any date, the total
amount of assets of the Company and its Restricted Subsidiaries on a
consolidated basis (less applicable reserves and other properly deductible
items) after deducting therefrom (1) all current liabilities (excluding any
current liabilities which are by their terms extendible or renewable at the
option of the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed or which is supported by other
borrowings with a maturity of more than 12 months from the date of calculation,)
(2) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangibles and (3) appropriate adjustments on
account of minority interests of other Persons holding stock of the Company's
Subsidiaries, all as set forth on the most recent balance sheet of the Company
and its consolidated Subsidiaries (but, in any event, as of a date within 120
days of the date of determination) in each case excluding intercompany items and
computed in accordance with generally accepted accounting principles as in
effect from time to time.
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"Consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person and each of its subsidiaries if and to the extent
the accounts of such Person and each of its subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP. The term
"Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in the form
of one or more Book-Entry Securities, The Depository Trust Company ("DTC"), its
nominees and successors, or another Person designated as Depositary by the
Company, which must be a clearing agency registered under the Exchange Act.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempted Debt" means the sum, without duplication, of the following
items outstanding as of the date Exempted Debt is being determined: (1)
Indebtedness of Republic Services, Inc. and the Restricted Subsidiaries Incurred
after the date of the Indenture and secured by Liens created, assumed or
otherwise Incurred or permitted to exist pursuant to Section 1005 hereof and (2)
Attributable Debt of Republic Services, Inc. and the Restricted Subsidiaries in
respect of all sale and leaseback transactions with regard to any Principal
Property entered into pursuant to Section 1006 hereof.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length free market transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy. Fair Market Value shall
be determined by the Board of Directors of the Company acting in good faith and
shall be evidenced by a resolution of the Board of Directors.
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"Funded Debt" means all Indebtedness for money borrowed, including
purchase money indebtedness, having a maturity of more than one year from the
date of its creation or having a maturity of less than one year but by its terms
being renewable or extendible, at the option of the obligor in respect thereof,
beyond one year from its creation.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States as in effect on the Issue
Date.
"Global Securities" means Global Securities to be issued as Book-Entry
Securities issued to the Depositary in accordance with Section 306.
"Guarantee" means any obligation, contingent or otherwise, of any
person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(1) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (2) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" means the registered holder of any Security.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for. The terms "Incurred," "Incurrence" and "Incurring" shall each have a
correlative meaning.
"Indebtedness" means with respect to any Person at any date of
determination (without duplication), indebtedness for borrowed money or
indebtedness evidenced by bonds, notes, debentures or other similar instruments
given to finance the acquisition of any businesses, properties or assets of any
kind (including, without limitation, capital stock or other equity interests in
any Person).
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"Indenture" means this instrument as originally executed (including all
exhibits and schedules thereto) and as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company and any
other obligor under this Indenture or under the Securities, to pay principal of,
premium, if any, and interest when due and payable, and all other amounts due or
to become due under or in connection with this Indenture, the Securities and the
performance of all other obligations to the Trustee and the Holders under this
Indenture and the Securities, according to the respective terms hereof and
thereof.
"Independent Investment Banker" means either Banc of America Securities
LLC or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or, if both firms are
unwilling or unable to select the Comparable Treasury Issue, an independent
investment banking institution of national standing appointed by the Trustee
after consultation with the Company.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issue Date" means the original issue date of the Securities under this
Indenture.
"Lien" with respect to any property or assets, means any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), 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 conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing), but not
including the interest of a lessor under a lease that is an operating lease
under GAAP.
"Maturity" means, when used with respect to the Securities, the date on
which the principal of the Securities becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity or the
Redemption Date and whether by declaration of acceleration, call for redemption
or otherwise.
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"Moody's" means Xxxxx'x Investors Service, Inc. or any successor rating
agency.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Financial
Officer or a Vice President (regardless of Vice Presidential designation), and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company and in form and substance reasonably satisfactory to,
and delivered to, the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Trustee, unless an Opinion of Independent Counsel
is required pursuant to the terms of this Indenture, and who shall be reasonably
acceptable to the Trustee, and which opinion shall be in form and substance
reasonably satisfactory to the Trustee.
"Opinion of Independent Counsel" means a written opinion of counsel
which is issued by a Person who is not an employee, director or consultant
(other than non-employee legal counsel) of the Company and who shall be
reasonably acceptable to the Trustee, and which opinion shall be in form and
substance reasonably satisfactory to the Trustee.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or any Affiliate thereof) in trust or
set aside and segregated in trust by the Company or any Affiliate thereof (if
the Company or any Affiliate thereof shall act as its own Paying Agent) for the
Holders of such Securities; provided that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been made;
(c) Securities, to the extent provided in Sections 402 and 403, with
respect to which the Company has effected defeasance or covenant defeasance as
provided in Article Four; and
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(d) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee and the Company proof reasonably satisfactory to each of them that such
Securities are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the reasonable satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person (including the Company) authorized by
the Company to pay the principal of, premium, if any, or interest on, any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or nonvoting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
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"Principal Property" means any land, land improvements or building,
together with the land upon which it is erected and fixtures comprising a part
thereof, in each case, owned or leased by the Company or any Restricted
Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 2% of Consolidated Net
Tangible Assets but not including such land, land improvements, buildings or
portions thereof which is financed through the issuance of tax exempt
governmental obligations, or any such property that has been determined by Board
Resolution of Republic Services, Inc. not to be of material importance to the
respective businesses conducted by the Company or such Restricted Subsidiary
effective as of the date such resolution is adopted.
"Redemption Date" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture.
"Reference Treasury Dealer" means (i) each of Banc of America
Securities LLC and Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, provided,
however, that if either of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute for such initial purchaser another Primary Treasury
Dealer and (2) any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" mean, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Independent Investment Banker, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Independent Investment Banker at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 15th or November 15th (whether or not a Business Day) next
preceding such Interest Payment Date.
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"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or any agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary or any other officer or assistant officer of the Trustee or
any agent of the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary which, at the time of
determination, owns or is a lessee pursuant to a capital lease of any Principal
Property.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc. or any successor rating agency.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means any Indebtedness of the Company which is
not expressly subordinated in right of payment to any other Indebtedness of the
Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 308.
"Stated Maturity" means, when used with respect to any Security, the
date specified in such Security as the fixed date on which the payment of
principal or interest of such Security is due and payable.
"Subsidiary" of a Person means, with respect to any Person, any
corporation, association, partnership or other business entity of which at least
a majority 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, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means (1) any evidence of Indebtedness,
maturing not more than one year
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after the date of acquisition, issued by the United States of America, or an
instrumentality or agency thereof, and guaranteed fully as to principal,
premium, if any, and interest by the United States of America, (2) any
certificate of deposit, maturing not more than one year after the date of
acquisition, issued by, or time deposit of, a commercial banking institution
that is a member of the Federal Reserve System and that has combined capital and
surplus and undivided profits of not less than $500,000,000, whose debt has a
rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's or any successor rating agency or "A-1" (or higher)
according to S&P or any successor rating agency, including the Trustee or any of
its affiliates, (3) commercial paper, maturing not more than one year after the
date of acquisition, issued by a corporation (other than an Affiliate or
Subsidiary of the Company) organized and existing under the laws of the United
States of America with a rating, at the time as of which any investment therein
is made, of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S&P, including the Trustee or any of its affiliates, and (4) any
money market deposit accounts issued or offered by a domestic commercial bank
having capital and surplus in excess of $500,000,000; provided that the short
term debt of such commercial bank has a rating, at the time of investment, of
"P-1" (or higher) according to Moody's or "A-1" (or higher) according to S&P.
"Treasury Rate" means, with respect to any Redemption Date, (1) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded U.S. Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for the maturity corresponding
to the comparable Treasury Issue (if no maturity is within three months before
or after the Remaining Life, yields for the two published Maturities most
closely corresponding to the Comparable Treasury Issue will be determined and
the Treasury Rate will be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (2) if such release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date. The Treasury Rate will be calculated on the third Business
Day preceding the Redemption Date.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor trustee.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, or any successor statute.
"Voting Stock" of a Person means Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors of the
Company.
Section 102. Other Definitions.
Term Defined in Section
---- ------------------
"Act" 105
"Agent Members" 306
"CUSIP" 309
"Defaulted Interest" 308
"Defeased Securities" 401
"Securities" Recitals
"Security Register" 305
"Security Registrar" 305
"Special Payment Date" 308
"Successor Company" 801
"U.S. Government Obligations" 404
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company and any other
obligor on the Securities (if applicable) shall furnish to the Trustee an
Officers' Certificate in a form and substance reasonably acceptable to the
Trustee stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel in a form and substance reasonably acceptable to the Trustee
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that, in the case of any such application
or request as to which the furnishing of such certificates or opinions is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or Opinion of Counsel with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
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(a) a statement that each individual signing such certificate or
individual or firm signing such opinion has read and understands such covenant
or condition and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual or such
firm, he or it has made such examination or investigation as is necessary to
enable him or it to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual
or such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate of an officer of the Company or other obligor on the
Securities may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or
other obligor on the Securities stating that the information with respect to
such factual matters is in the possession of the Company or other obligor on the
Securities, unless such officer or counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Opinions of Counsel required to be
delivered to the Trustee may have qualifications customary for opinions of the
type required and counsel delivering such Opinions of Counsel may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, including certificates certifying as to matters
of fact, including that various financial covenants have been complied with.
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Any certificate or opinion of an officer of the Company or other
obligor on the Securities may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of, or representations by, an accountant
or firm of accountants in the employ of the Company, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the accounting matters upon which his
certificate or opinion may be based are erroneous. Any certificate or opinion of
any independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent with respect to the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the Security
Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security or the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Company
or any other obligor of the Securities in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or
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writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for purposes of determining
whether Holders of the requisite proportion of Securities then Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for this purpose the
Securities then Outstanding shall be computed as of such record date; provided
that no such request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after such record date. (f) For purposes of this Indenture, any
action by the Holders which may be taken in writing may be taken by electronic
means or as otherwise reasonably acceptable to the Trustee.
Section 106. Notices, etc., to the Trustee, the Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any other obligor on
the Securities shall be sufficient for every purpose (except as provided in
Section 501(d), in which case, the notice shall be delivered by certified mail)
hereunder if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight
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courier, to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration, or at any other address previously
furnished in writing to the Holders or the Company, or any other obligor on the
Securities by the Trustee and shall be deemed given upon actual receipt by the
Trustee; or
(b) the Company by the Trustee or any Holder shall be sufficient for
every purpose (except as provided in Section 501(d), in which case, the notice
shall be delivered by certified mail) hereunder if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to
the Company addressed to Republic Services, Inc., 110 S.E. 6th Street, 28th
Floor, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee by the Company.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or delivered by
recognized overnight courier, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee and reasonably
calculated to reach its destination shall be deemed to be a sufficient giving of
such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or
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requirement of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Trustee shall bind their respective successors and assigns, whether so expressed
or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE CONFLICT OF LAWS PRINCIPLES THEREOF.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Maturity
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date or Redemption Date, or at
the Maturity or Stated Maturity and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
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Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 116. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 117. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be deemed an original; but all such counterparts shall together
constitute but one and the same instrument.
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The (i) __% Notes due 200_ and the Trustee's certificate of
authentication thereon shall be in substantially the form of Exhibit A hereto;
and (ii) the __% Notes due 200_ and the Trustee's certification of
authentication thereon shall be in substantially the form of Exhibit B hereto,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted hereby and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
The Securities shall be issued initially in the form of one or more
Global Securities, substantially in the forms set forth on Exhibits A and B,
respectively, deposited upon issuance with the Trustee, as custodian for the
Depositary, registered in the name of the Depositary or its nominee, in each
case for credit to an account of a direct or indirect participant of the
Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Global Securities
may from time to time be increased (but in no event shall the aggregate
principal amount of the Global Securities exceed $___ million) or decreased upon
the written direction of the Company by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
The terms and provisions contained in the form of the Securities set
forth in Exhibits A and B shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
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ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $___,000,000 in principal
amount of Securities, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Xxxxxxx 000, 000, 000, 000, 000 xx 0000.
The Securities shall be known and designated as the "___% Notes due
200_" and the "___% Notes due 200_" of the Company.
The Stated Maturity of the ___% Notes due 200_ shall be June 1, 200_,
and the Securities shall each bear interest at the rate of ___% per annum, as
such interest rate may be adjusted as set forth in the Securities, from
__________, 1999, or from the most recent Interest Payment Date to which
interest has been paid, payable semiannually on June 1 and December 1 in each
year, commencing _________, 1999, until the principal thereof is paid or duly
provided for.
The Stated Maturity of the ___% Notes due 200_ shall be June 1, 200_,
and the Securities shall each bear interest at the rate of ___% per annum, as
such interest rate may be adjusted as set forth in the Securities, from
__________, 1999, or from the most recent Interest Payment Date to which
interest has been paid, payable semiannually on June 1 and December 1 in each
year, commencing _________, 1999, until the principal thereof is paid or duly
provided for.
The principal of, premium, if any, and interest on, the Securities
shall be payable and the Securities shall be exchangeable and transferable at an
office or agency of the Company in The City of New York maintained for such
purposes (which initially will be the Corporate Trust Office of the Trustee;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to addresses of the Persons entitled thereto as shown on
the Security Register.
The Securities shall be redeemable as provided in Article Eleven and in
the Securities.
The Indebtedness evidenced by the Securities shall rank pari passu in
right of payment with all other Senior Indebtedness.
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At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Defaults and Events of Default thereunder may be defeased as provided in Article
Four.
Section 302. Denominations.
The Securities shall be issuable only in fully registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Financial Officer or one of its Vice Presidents. The signatures of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security endorsed thereon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall, in a single
transaction or through a series of related transactions, be consolidated,
amalgamated, combined or merged with or into any other Person or shall sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets to any Person, and the successor Person resulting
from such consolidation, amalgamation, or combination or surviving such merger,
or into which the Company shall have been merged, or the
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successor Person which shall have participated in the sale, assignment,
conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
Eight, any of the Securities authenticated or delivered prior to such
consolidation, amalgamation, combination, merger, sale, assignment, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor Person, be exchanged for other Securities executed in the name of
the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 303 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
If an officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates such Security such Security shall
be valid nevertheless.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender
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for cancellation of any one or more temporary Securities, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such other
office as the Trustee may designate, a register (the register maintained in such
office or in any other office or agency designated pursuant to Section 1002
being herein sometimes referred to as the "Security Register") in which, subject
to such reasonable regulations as the Security Registrar may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee shall initially be the "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided. The Company may change the Security Registrar or appoint one or more
Co-Security Registrars without prior notice; provided that the Company shall
promptly notify the Trustee if the Company changes the Security Registrar or
appoints a co-Security Registrar.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series of any authorized denomination or denominations, of a like aggregate
principal amount.
Furthermore, any Holder of the Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in a Security shall be required to be reflected in a book
entry. At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
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Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange, repurchase or redemption, shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, other than exchanges pursuant to
Sections 305 or 307 not involving any transfer, except for any tax or other
governmental charge that may be imposed in connection therewith.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 1104 and ending at the close of business on the day
of such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
Any Security authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, any Global Security, whether pursuant to
this Section 305, Sections 303, 304, 307, 906 or 1108 or otherwise, shall also
be a Global Security and bear the legend specified in Exhibits A and B hereto.
Section 306. Book Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in the name
of the Depositary for such Global Security or the nominee of such Depositary,
(ii) be deposited with, or on behalf of, the Depositary or with the Trustee as
custodian for such Depositary and (iii) bear legends as set forth in Exhibits A
and B hereto.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
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(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Company fails to appoint a successor Depositary, (ii) the
Company, at its option, executes and delivers to the Trustee a Company Order
stating that it elects to cause the issuance of the Securities in certificated
form and that all Global Securities shall be exchanged in whole for Securities
that are not Global Securities (in which case, such exchange shall be effected
by the Trustee) or (iii) there shall have occurred and be continuing an Event of
Default or any Default.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Three or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to this Section
306(c) and as otherwise provided in this Article Three, authenticate and deliver
any Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to conclusively rely upon any order,
direction or request of the Depositary or its authorized representative which is
given or made pursuant to this Article Three if such order, direction or request
is given or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered
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in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
Section 307. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon a Company Request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Security, pay or purchase such Security, as the
case may be.
Upon the issuance of any replacement Securities under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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Section 308. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on the Stated Maturity of such interest shall be paid to the
Person in whose name the Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on the Stated Maturity of such interest, and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or any relevant Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 30 days after such notice) of the
proposed payment (the "Special Payment Date"), and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the Special Payment Date, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Subsection provided. Thereupon,
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the Special Payment Date and shall
fix the Special Record Date not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company in writing of such Special Record Date. In
the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at its address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
and Special Payment Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities are
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registered on such Special Record Date and shall no longer be payable
pursuant to the following Subsection (b).
(b) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as
may be required by this Indenture not inconsistent with the
requirements of such exchange, if, after written notice given by the
Company to the Trustee of the proposed payment pursuant to this
Subsection, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 308, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 309. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Company, or the Trustee on behalf of the Company,
shall use CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Securities; and provided further, however, that failure to use CUSIP numbers
in any notice of redemption or exchange shall not affect the validity or
sufficiency of such notice. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
Section 310. Persons Deemed Owners.
Prior to and at the time of due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company,
or the Trustee may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 308) interest on, such Security and for
all other purposes whatsoever, whether or not such Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 311. Cancellation.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall
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be promptly canceled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 311, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall, upon written request of the
Company, be disposed in accordance with the Trustee's standard procedures,
unless by a Company Order received by the Trustee prior to such disposition, the
Company shall direct that the canceled Securities be returned to it. The Trustee
shall provide the Company a list of all Securities that have been canceled from
time to time as requested by the Company.
Section 312. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
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ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to a series of Securities, elect to have either Section 402 or Section
403 be applied to all of the Outstanding Securities of the applicable series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 402, the Company and any other obligor upon the applicable
series of Securities, if any, shall be deemed to have been discharged from its
obligations with respect to the Defeased Securities on the date the conditions
set forth in Section 404 below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Company and any other obligor under
this Indenture shall be deemed to have paid and discharged the entire
Indebtedness represented by the Defeased Securities, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 405 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such series of Securities and this
Indenture insofar as such series of Securities are concerned (and the Trustee,
at the expense of the Company and upon Company Request, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on, such series of
Securities, when such payments are due, (b) the Company's obligations with
respect to such Defeased Securities under Sections 303, 304, 305, 307, 1002 and
1003, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including, without limitation, the Trustee's rights under Section
607, and (d) this Article Four. Subject to compliance with this Article Four,
the Company may exercise its option under this Section 402 notwithstanding the
prior exercise of its option under Section 403 with respect to a series of
Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option applicable
to this Section 403, the Company shall be released from its obligations under
any covenant or provision contained or referred to in Sections 1005, 1006 and
1007, with respect to the
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Defeased Securities, on and after the date the conditions set forth in Section
404 below are satisfied (hereinafter, "covenant defeasance"), and the Defeased
Securities shall thereafter be deemed to be not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder, and the
Events of Default under Section 501(c) and (d) shall cease to be in full force
and effect with respect to the applicable series of Securities. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(c) and (d) but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
402 or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such series of Securities, (a) cash in United
States dollars in an amount, (b) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms and with no further reinvestment will provide, not later than
one day before the due date of payment, money in an amount, or (c) a combination
thereof, in such amounts as will be 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 to pay and discharge, the principal of, premium,
if any, and interest on, the Defeased Securities, on the Stated Maturity of such
principal or interest. For this purpose, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
the timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government
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Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository receipt;
(2) In the case of an election under Section 402, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such Opinion of Independent
Counsel in the United States shall confirm that, the Holders of the Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(3) In the case of an election under Section 403, the Company shall
have delivered to the Trustee an Opinion of Independent Counsel in the United
States to the effect that the Holders of the Outstanding Securities 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;
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Section 501(e) is
concerned, at any time during the period ending on the 91st day after the date
of deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(5) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company or any Restricted
Subsidiary is a party or by which it is bound;
(6) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder;
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(7) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that after the 91st day
following the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the applicable series of Securities over the other
creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(9) No event or condition shall exist that would prevent the Company
from making payments of the principal of, premium, if any, and interest on the
applicable series of Securities on the date of such deposit or at any time
ending on the 91st day after the date of such deposit; and
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 402 or the covenant defeasance under Section 403 (as the case may be)
have been complied with.
Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
Section 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
United States dollars and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 404 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such series of Securities and this Indenture,
to the payment, either directly or through any Paying Agent (excluding the
Company or any of its Affiliates acting as Paying Agent), as the Trustee may
determine, to the Holders of such series of Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and 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
deposited
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pursuant to Section 404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is imposed,
assessed or for the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 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 defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 402 or 403, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the applicable series of
Securities shall be revived and reinstated, with present and prospective effect,
as though no deposit had occurred pursuant to Section 402 or 403, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply all
such United States dollars or U.S. Government Obligations in accordance with
Section 402 or 403, as the case may be; provided, however, that if the Company
makes any payment to the Trustee or Paying Agent of principal of, premium, if
any, or interest on any Security of such series following the reinstatement of
its obligations, the Trustee or Paying Agent shall promptly pay any such amount
to the Holders of the Securities of such series and the Company shall be
subrogated to the rights of the Holders of such series of Securities to receive
such payment from the United States dollars and U.S. Government Obligations held
by the Trustee or Paying Agent pursuant to Section 402 or 403.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) with respect to a particular series
of Securities:
(a) there shall be a default in the payment of any installment of
interest on any of the Securities of such series when it becomes due and
payable, and such default shall continue for a period of 30 days;
(b) there shall be a default in the payment of the principal of (or
premium, if any, on) any of the Securities of such series when it becomes due
and payable, whether at Maturity, upon redemption by declaration or otherwise);
(c) there shall be a default in the performance, or breach, of any
covenant or agreement of the Company applicable to such series of Securities
(other than a default in the performance, or breach, of a covenant or agreement
which is specifically dealt with in clause (a) and (b)) and such default or
breach shall continue for a period of 60 days after written notice to the
Company specifying such failure and requiring the Company or any Restricted
Subsidiary to remedy the same has been given, by certified mail, (x) to the
Company by the Trustee or (y) to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Outstanding Securities of each
affected series, with each affected series voting as a separate class;
(d) any Indebtedness of the Company or any Restricted Subsidiary of the
Company with an aggregate principal amount of at least $25,000,000 shall not
have been paid when due and shall continue not to be paid for 25 days after
written notice by certified mail, (x) to the Company by the Trustee or (y) to
the Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of each series (with the Holders
of all Outstanding Securities voting as one class);
(e) (i) there shall have been the entry by a court of competent
jurisdiction of (A) a decree or order for relief in respect of the Company or
any of its Significant Subsidiaries in an involuntary case or proceeding under
any applicable Bankruptcy Law or (B) a decree or order adjudging the Company or
any Subsidiary bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Subsidiary
under any applicable federal or state
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law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or any Subsidiary or of
any substantial part of their respective properties, or ordering the winding up
or liquidation of their affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days or (ii) (A) the Company or
any Subsidiary commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or
insolvent, (B) the Company or any Subsidiary consents to the entry of a decree
or order for relief in respect of the Company or such Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, (C)
the Company or any Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (D) the
Company or any Subsidiary (1) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or such
Subsidiary or of any substantial part of their respective properties, (2) makes
an assignment for the benefit of creditors or (3) admits in writing its
inability to pay its debts generally as they become due or (E) the Company or
any Subsidiary takes any corporate action in furtherance of any such actions in
this paragraph (e)(ii).
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Sections 501(e)) shall occur and be continuing, unless the principal and
interest with respect to all of the Securities of such series shall have already
become due and payable, the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of all series affected thereby then
Outstanding may, and the Trustee at the request of such Holders shall, declare
all unpaid principal of, premium, if any, and accrued interest on all Securities
of the series affected thereby to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders of the
Securities) and upon any such declaration, such principal, premium, if any, and
interest shall become due and payable immediately. If an Event of Default
specified in clause (e) of Section 501 occurs and is continuing, unless the
principal and interest with respect to the Securities shall have already become
due and payable, then all the Securities shall ipso facto become and be due and
payable immediately in an amount equal to the principal amount of the
Securities, together with accrued and unpaid interest, if any, to the date the
Securities become due and payable, without any declaration or other act on the
part of the Trustee or any Holder. Thereupon, the Trustee may, at its
discretion, proceed to protect and enforce the rights of the Holders of the
Securities by appropriate judicial proceedings.
In the event of a declaration of acceleration because of an Event of
Default set forth in clause (d) of Section 501 has occurred and is continuing,
such declaration
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acceleration shall be automatically rescinded and annulled if the Event of
Default triggering such Event of Default pursuant to clause (d) above shall be
remedied or cured by the Company or the relevant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto.
At any time after a declaration of acceleration with respect to any of
the Securities of any series, but before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the holders of a majority in aggregate principal amount of the
Outstanding Securities of any affected series (with each affected series voting
as a separate class), by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(i) all sums paid or advanced by the Trustee under this Indenture
and the reasonable compensation, fees and expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding Securities of such
series,
(iii) the principal of and premium, if any, on any Outstanding
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by
such series of Securities, and
(iv) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the applicable series of
Securities;
(b) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
(c) all Events of Default, other than the non-payment of principal of,
premium, if any, and interest on the applicable series Securities which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 513. No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
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(a) default is made in the payment of any interest on any Security of
any series when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security of any series at the Stated Maturity thereof or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such series of Securities, the whole amount then due and payable on
the Securities of such series for principal and premium, if any, and interest,
with interest upon the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Securities of such series;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities
of such series, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders under this Indenture by such appropriate private or judicial proceedings
as the Trustee shall deem most effectual to protect and enforce such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein or therein, or
to enforce any other proper remedy or to enforce any other proper remedy,
subject however to Section 512. No recovery of any such judgment upon any
property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, upon the
Securities of any series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of such
series of Securities shall then be due and
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payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Securities of
any series and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, fees and expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
For purposes of this Section, the Trustee is hereby designated as the
attorney-in-fact for the Holders.
Section 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture with respect to
any series of Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, fees and expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities of such series in respect of which such judgment has been
recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the several Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal, premium, if any, and interest, in respect of which or
for the benefit of which such money has been collected, on the Securities of
such series in the order of the maturity of the installments of such interest,
such payments to be made ratably to the Persons entitled thereto, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest; and
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Company, provided that all sums due and owing to the Holders and
the Trustee have been paid in full as required by this Indenture.
Section 507. Limitation on Suits.
No Holder of any series of Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or any
series of Securities, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of each affected series (voting as one class) shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, fees and expenses and
liabilities to be incurred in compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice, request
and offer (and, if requested, provision) of indemnity has failed to institute
any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of the affected series (voting as
one class);
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Security of any series to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture
or any Security of any series, except in the manner provided in this Indenture
and for the equal and ratable benefit of all the Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 308) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the repurchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, any
other obligor on the Securities, the Trustee and the Holders shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or
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otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any or all series affected (voting as one
class) shall have the right to direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee under this Article Five, provided
that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture (including, without limitation, Section 507), expose the
Trustee to personal liability or be unduly prejudicial to Holders not joining
therein; and
(b) subject to the provisions of Section 315 of the Trust Indenture
Act, the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Prior to the acceleration of the maturity of the Securities, the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of any or all series affected may on behalf of the
Holders of all Outstanding Securities of such series waive any past Default or
Event of Default and its consequences, except a Default or Event of Default
(a) in the payment of the principal of, premium, if any, or interest on
any Security (which may only be waived with the consent of each Holder of
Securities affected); or
(b) in respect of a covenant or a provision hereof which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Security Outstanding affected by such modification or amendment.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities
(voting as one class), or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on,
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the principal
of, premium, if any, or interest on the Securities contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 516. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to
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be subject to all applicable mandatory provisions of law which may be
controlling in the premises and to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a)
through 315(d):
(a) if a Default or 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 thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs;
(b) except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee; and
(2) in the absence of bad faith or willful misconduct 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. However, the Trustee shall examine the
certificates and opinions which by any provision hereof are required to
be furnished to the Trustee, to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein);
(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 Subsection (c) does not limit the effect of Subsection (b)
of this Section 601;
(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; and
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(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 of
the Holders of a majority in principal amount of Outstanding Securities
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
confirmed upon the Trustee under this Indenture;
(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 duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it;
(e) whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to Subsections
(a), (b), (c) and (d) of this Section 601; and
(f) the Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 602. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives
actual notice of the occurrence of any Default, the Trustee shall transmit by
mail to all Holders and any other Persons entitled to receive reports pursuant
to Section 313(c) of the Trust Indenture Act, as their names and addresses
appear in the Security Register, notice of such Default hereunder actually known
to the Trustee, unless such Default shall have been cured or waived; provided,
however, that, except in the case of a Default in the payment of the principal
of, premium, if any, or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof and Trust Indenture Act
Sections 315(a) through 315(d):
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(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon receipt by it of any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence, bad faith or willful misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document
unless requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Securities then Outstanding; provided that,
if the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation so requested by
the Holders of not less than 25% in aggregate principal amount of the Securities
Outstanding shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand; provided,
further, the Trustee in its discretion may make such further inquiry or
investigation into such facts or matters as it may deem fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be required to take notice, and shall not be
deemed to have notice, of any Default or Event of Default hereunder, except
Events of Default described in paragraphs (a) and (b) of Section 501 hereof
unless the Trustee shall be notified specifically of the Default or Event of
Default on a written instrument or document received by the Trustee at its
Notice Address by the Company or by the Holders of at least 10% of the aggregate
principal amount of the Securities then outstanding and such notice references
the Securities and this Indenture. In the absence of delivery of notice
satisfying those requirements, the Trustee may assume conclusively that there is
no Default or Event of Default, except as noted above;
(i) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate; and
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed by the Trustee
to act hereunder.
Section 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification on Form T-1 to be supplied
to the Company will be true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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Section 605. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other agent of
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities, with the same rights it would have if it were not the
Trustee, Paying Agent, Security Registrar or such other agent and, subject to
Trust Indenture Act Sections 310 and 311, may otherwise deal with the Company
and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds, except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Article Four, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in
Temporary Cash Investments in accordance with the written directions of the
Company.
In the event of a loss on the sale of such investments (after giving
effect to any interest or other income thereon except to the extent theretofore
paid to the Company), the Trustee shall have no responsibility in respect of
such loss except that the Trustee shall notify the Company of the amount of such
loss and the Company shall promptly pay such amount to the Trustee to be
credited as part of the moneys originally invested.
Section 607. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company covenants and agrees to pay to the Trustee from time to
time, such compensation as agreed to in writing by the Company and the Trustee
and reasonable compensation for all other services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of all express trust), and the Company covenants
and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable fees, expenses, disbursements and advances incurred
or made by or on behalf of the Trustee in accordance with any of the provisions
of this Indenture and as agreed upon in the fee agreement between the Trustee
and the Company (including the reasonable compensation and the fees, expenses
and disbursements of its counsel and of all agents and other persons not
regularly in its employ); except any such expense, disbursement or advance as
may arise from its negligence, bad faith or willful misconduct. The Company also
covenants and agrees to indemnify the Trustee and its directors, officers,
agents and employees and each predecessor Trustee (the "Indemnitees") for, and
to hold them harmless against, any claim, loss, liability, damage, tax,
assessment or other
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governmental charge (other than taxes applicable to the Trustee's compensation
hereunder) or expense incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including enforcement of this Section 607 and also including any
liability which the Indemnitees may incur as a result of failure to withhold,
pay or report any tax, assessment, fine, penalty, damages or other governmental
charge, and the costs, fees and expenses of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of the
Company under this Section 607 to compensate and indemnify the Indemnitees and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for reasonable fees, expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee and each predecessor Trustee.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act.
Section 609. Trustee Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible
to act as trustee under Trust Indenture Act Section 310(a) and which shall have
a combined capital and surplus of at least $50,000,000, to the extent there is
an institution eligible and willing to serve. If the Trustee does not have a
Corporate Trust Office in The City of New York, the Trustee may appoint an agent
in The City of New York reasonably acceptable to the Company to conduct any
activities which the Trustee may be required under this Indenture to conduct in
The City of New York. If such Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section 609, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
609, the Trustee shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 611.
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(b) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice thereof to the Company no later than 30
Business Days prior to the proposed date of resignation. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning Trustee and a copy
to the successor trustee. If an instrument of acceptance by a successor trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may, or any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint and
prescribe a successor trustee.
(c) The Trustee may be removed at any time for any cause or for no
cause by an Act of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months,
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor trustee and
shall comply with the applicable requirements of Section 611. If, within 60 days
after such resignation, removal or incapability, or the occurrence of such
vacancy, the Company has not appointed a successor Trustee, a successor trustee
shall be appointed by the Act of the Holders of a majority in principal amount
of the Outstanding Securities delivered to the Company and the retiring Trustee.
If no successor trustee shall have been so appointed by the Company or the
Holders of the Securities and accepted appointment in the manner provided
herein, the Trustee or the Holder of any Security who has been a bona fide
Holder for at least six months may, subject to Section 514, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor trustee and the address of its
Corporate Trust Office or agent hereunder.
Section 611. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee as if originally named as Trustee hereunder;
but, nevertheless, on the written request of the Company or the successor
trustee, upon payment of its charges pursuant to Section 607 then unpaid, such
retiring Trustee shall pay over to the successor trustee all moneys, Temporary
Cash Investments and other property relating thereto at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $50,000,000 and have a Corporate
Trust Office or an agent selected in accordance with Section 609.
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Upon acceptance of appointment by any successor trustee as provided in
this Section 611, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the appointment, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
610. If the Company fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture) shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $50,000,000 and have a Corporate
Trust Office or an agent selected in accordance with Section 609, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent
indicated therein, as qualified by Trust Indenture Act Section 311(b).
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Company, the Trustee, the Security Registrar and any other Person
shall have the protection of Trust Indenture Act Section 312(c). Further, every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee or any agent of either
of them shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with Trust Indenture
Act Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
(a) Within 60 days after May 1 of each year commencing with the first
May 1 after the issuance of Securities, the Trustee, if so required under the
Trust Indenture Act, shall transmit by mail to all Holders, in the manner and to
the extent provided in Trust Indenture Act Section 313(c), a brief report dated
as of such May 1 in accordance with and with respect to the matters required by
Trust Indenture Act Section 313(a). The Trustee shall also transmit by mail to
all Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), a brief report in accordance
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with and with respect to the matters required by Trust Indenture Act Section
313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this
Section 703 shall, at the time of such transmission, be mailed to the Company
and filed with each stock exchange, if any, upon which the Securities are listed
and also with the Commission. The Company will notify the Trustee promptly if
the Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
The Trustee shall be under no obligation to analyze or make any credit
decision with respect to any financial statements or reports received by it
hereunder, but shall hold such financial statements or reports solely for the
benefit of and/or review by the holders of the Securities.
Delivery of such reports, information and documents to the Trustee
hereunder and under Section 1007 is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 705. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in compliance (without regard to periods of grace or notice
requirements) with all conditions and covenants under this Indenture, and if the
Company shall not be in compliance, specifying such non-compliance and the
nature and status thereof of which such signers may have knowledge.
Section 706. Statement by Officers as to Default.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 801. Company May Consolidate, etc., Only on Certain Terms.
The Company will not, in a single transaction or through a series of
related transactions, consolidate, amalgamate, combine or merge with or into any
other Person or, directly or indirectly, sell, assign, convey, lease, transfer
or otherwise dispose of all or substantially all of its properties and assets to
any Person or group of Persons, or permit any of its Restricted Subsidiaries to
enter into any such transaction or series of transactions, if such transaction
or series of transactions, in the aggregate, would result in a sale, assignment,
conveyance, lease, transfer or disposition of all or substantially all of the
properties and assets of the Company and its Restricted Subsidiaries on a
Consolidated basis to any other Person or group of Persons, unless at the time
and after giving effect thereto:
(i) either (a) the Company will be the continuing corporation in the
case of a merger, combination or consolidation or (b) the Person (if
other than the Company) formed by such consolidation or the resulting,
surviving or transferee Person, if other than the Company (the
"Successor Company",) will be a corporation duly organized and validly
existing under the laws of the United States of America, any state
thereof or the District of Columbia and such Person expressly assumes,
by a supplemental indenture, in a form reasonably satisfactory to the
Trustee, all the obligations of the Company under the Securities and
this Indenture, and in each case, the Securities and the Indenture will
remain in full force and effect as so supplemented;
(ii) 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 will have occurred and be continuing and
the Company will have delivered to the Trustee an Officer's Certificate
to that effect;
(iii) at the time of the transaction the Company or the Successor
Company will have delivered, or caused to be delivered, to the Trustee,
in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect
that such transaction or series of transactions, and, if a supplemental
indenture is required in connection with such transaction or series of
transactions to
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effectuate such assumption, such supplemental indenture in respect
thereof comply with this covenant and that all conditions precedent in
the Indenture relating to such transaction have been satisfied.
Notwithstanding the foregoing, any Restricted Subsidiary may
consolidate, amalgamate or combine with or merge with or into or, directly or
indirectly, sell, assign, convey, lease, transfer or otherwise dispose of all or
substantially all of its properties and assets to the Company or, subject to the
condition set forth in clause (ii) in the preceding sentence, to any other
Restricted Subsidiary.
Section 802. Successor Substituted.
Upon any consolidation, combination, amalgamation or merger, or any
sale, assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company, if any, in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or the successor Person to which such sale,
assignment, conveyance, transfer, lease or disposition is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Securities with the same effect as if such
successor had been named as the Company herein, in the Securities and the
Company shall be discharged from all obligations and covenants under the
Indenture and the Securities; provided that in the case of a transfer by lease,
the predecessor shall not be released from the payment of principal and interest
on the Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Company and any other obligor
under the Securities when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto or agreements or other instruments with respect to the
Indenture or any series of the Securities, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another Person to the Company
pursuant to the provisions of Article Eight and the assumption by such successor
of the covenants, agreements and obligations of the Company in the Indenture and
in the Securities;
(b) to surrender any right or power conferred upon the Company by the
Indenture, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders as the
Board of Directors of the Company shall consider to be for the protection of the
Holders, and to make the occurrence, or the occurrence and continuance, of a
default in any of such additional covenants, restrictions, conditions, or
provisions a default or an Event of Default under the Indenture (provided,
however, that with respect to any such additional covenant, restriction,
condition, or provision, such supplemental indenture may provide for a period of
grace after default, which may be shorter or longer than that allowed in the
case of other defaults, may provide for an immediate enforcement upon such
default, may limit the remedies available to the Trustee upon such default, or
may limit the right of Holders of a majority in aggregate principal amount of
any series of the Securities to waive such default);
(c) to cure any ambiguity or to correct or supplement any provision
contained in the Indenture, in any supplemental indenture or in the Securities
of any series that may be defective or inconsistent with any other provision
contained herein or therein, to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard to
matters or questions arising under the Indenture as shall not adversely affect
the interests of any Holders;
(d) to modify or amend the Indenture in such a manner as to permit the
qualification of the Indenture or any supplemental indenture under the Trust
Indenture Act as then in effect;
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(e) to comply with the provisions of Article Eight;
(f) to add guarantees with respect to any series of the Securities of
any series or to secure any series of the Securities of any series;
(g) to make any change that does not adversely affect the rights of any
Holder; and
(h) to evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Securities of any series and
to add to or change any of the provisions of the Indenture as shall be necessary
to provide for or facilitate the administration of the Indenture by more than
one Trustee.
Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
Except as permitted by Section 901, with the consent of the Holders of
at least a majority in aggregate principal amount of the Outstanding Securities
of all series affected thereby (voting as one class), by Act of said Holders
delivered to the Company and the Trustee, the Company when authorized by Board
Resolutions, and the Trustee may (i) enter into an indenture or indentures
supplemental hereto or agreements in form and substance reasonably satisfactory
to the Trustee, for the purpose of adding any provisions to, amending, modifying
or changing in any manner, or eliminating any of the provisions of the
Indenture, of any supplemental indenture or the Securities of each such series
(including but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture or the Securities of such series) or
(ii) waive compliance with any provision in the Indenture or the Securities of
such series (other than waivers of past defaults covered by Section 513 and
waivers of covenants covered by Section 1008); provided, however, that no such
supplemental indenture, agreement or instrument shall, without the consent of
the Holder of each Outstanding Security of all series affected thereby:
(a) reduce the percentage in principal amount of the Outstanding
Securities of such series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
(b) reduce the rate of or extend the time for payment of interest on
the Securities of such series or reduce the amount of any payment of interest on
the Securities of such series;
(c) reduce the principal of or extend the Stated Maturity of the
Securities of such series;
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(d) reduce the premium payable upon the redemption of the Securities of
such series or change the time at which the Securities of such series may or
shall be redeemed;
(e) impair the right to institute suit for enforcement of any payment
of principal, premium, if any, or interest on the Securities of such series
after the Stated Maturity thereof (or in the case of redemption, on or after the
Redemption Date);
(f) make the Securities of such series payable in a currency other than
U.S. dollars;
(g) modify any of the provisions of this Section 902 or Section 513 or
1008, except to increase the percentage of such Outstanding Securities of such
series required for such actions or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each such Security of such series affected thereby;
(h) amend or modify any of the provisions of this Indenture in any
manner which subordinates the Securities of such series issued hereunder in
right of payment to any other Indebtedness of the Company;
(i) release any security that may have been granted with respect to the
Securities of such series; or
(j) make any change in the provisions of the Indenture relating to
waivers of defaults or amendments that require unanimous consent.
Upon the written request of the Company, accompanied by a copy of Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section 902
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Trust
Indenture Act Sections 315(a) through 315(d) and Section 601 hereof) shall be
fully protected in relying upon, an Opinion of Counsel and
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an Officers' Certificate stating that the execution of such supplemental
indenture, agreement or instrument (a) is authorized or permitted by this
Indenture and (b) does not violate the provisions of any agreement or instrument
evidencing any other Indebtedness of the Company or any Restricted Subsidiary.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities of the series affected thereby theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security of any
series affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of, premium, if
any, and interest on each of the series of Securities in accordance with the
terms of the applicable series of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment. The Company also will maintain in The City
of New York an office or agency where Securities may be surrendered for
registration of transfer, redemption or exchange and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. The office of the Trustee or its affiliates, at its corporate trust
office initially located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000, will be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of the
location and any change in the location of any such offices or agencies. If at
any time the Company shall fail to maintain any such required offices or
agencies or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
office of the Trustee or its affiliates and the Company hereby appoints the
Trustee or its affiliates such agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such office or agency.
The Trustee shall initially act as Paying Agent for the Securities.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act as Paying
Agent, it will, on or before each due date of the principal of, premium, if any,
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Holders entitled thereto a sum sufficient to pay the principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
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If the Company or any of its Affiliates is not acting as Paying Agent,
the Company will, on or before 10:00 a.m. New York City time of each due date of
the principal of, premium, if any, or interest on any of the Securities, deposit
with a Paying Agent a sum in same day funds sufficient to pay the principal,
premium, if any, or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on the Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal, premium,
if any, or interest on the Securities;
(c) at any time during the continuance of any such Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay or by
Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on
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Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York Times and The Wall Street Journal (national edition), and mail to each
such Holder, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, publication and mailing, any unclaimed balance of such money then
remaining will promptly be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary or any trademark, trade name or
service xxxx of the Company or any Restricted Subsidiary if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer necessary or desirable in the conduct or the business of the Company and
its Restricted Subsidiaries taken as a whole and that the loss thereof is not
adverse in any material respect to the ability of the Company to perform its
obligations hereunder.
Section 1005. Restrictions on Liens.
(a) The Company will not, and will not permit any Restricted Subsidiary
of the Company to, Incur any Lien on any shares of stock, Indebtedness or other
obligations of a Subsidiary or any Principal Property of the Company or a
Restricted Subsidiary, whether such shares of stock, Indebtedness or other
obligations of a Subsidiary or Principal Property is owned at the date of the
Indenture or thereafter acquired, without in any such case effectively providing
that all the Securities will be directly secured equally and ratably with such
Lien.
(b) The foregoing restrictions will not apply to:
(1) the Incurrence of any Lien on any shares of stock, Indebtedness or
other obligations of a Subsidiary or any Principal Property acquired after the
date of the Indenture (including acquisitions by way of merger or consolidation)
by the Company or a Restricted Subsidiary contemporaneously with such
acquisition, or within 120 days thereafter, to secure or provide for the payment
or financing of any part of the purchase
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price thereof, or the assumption of any Lien upon any shares of stock,
Indebtedness or other obligations of a Subsidiary or any Principal Property
acquired after the date of the Indenture existing at the time of such
acquisition, or the acquisition of any shares of stock, Indebtedness or other
obligations of a subsidiary or any Principal Property subject to any Lien
without the assumption thereof, provided that every such Lien referred to in
this clause (1) shall attach only to the shares of stock, Indebtedness or other
obligations of a Subsidiary or any Principal Property so acquired and fixed
improvements thereon;
(2) any Lien on any shares of stock, Indebtedness or other obligations
of a Subsidiary or any Principal Property existing at the date of the Indenture;
(3) any Lien on any shares of stock, Indebtedness or other obligations
of a Subsidiary or any Principal Property in favor of the Company or any
Restricted Subsidiary;
(4) any Lien on Principal Property being constructed or improved
securing loans to finance such construction or improvements;
(5) any Lien on shares of stock, Indebtedness or other obligations of a
Subsidiary or any Principal Property Incurred in connection with the issuance of
tax exempt government obligations; and
(6) any renewal of or substitution for any Lien permitted by any of the
preceding clauses (1) through (5), provided, in the case of a Lien permitted
under clause (1), (2) or (4), the debt secured is not increased nor the Lien
extended to any additional assets.
(c) Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may create or assume Liens in addition to those permitted by clauses
(1) through (6), and renew, extend or replace such Liens, provided that at the
time of such creation, assumption, renewal, extension or replacement of such
Lien, and after giving effect thereto, together with any sale and leaseback
transactions permitted under Section 1006(b) hereof, Exempted Debt does not
exceed 20% of Consolidated Net Tangible Assets.
(d) For the purposes of this Section 1005 and Section 1006, the giving
of a guarantee which is secured by a Lien on any shares of stock, Indebtedness
or other obligations of a Subsidiary or any Principal Property, and the creation
of a Lien on any shares of stock, Indebtedness or other obligations of a
Subsidiary or any Principal Property to secure Indebtedness that existed prior
to the creation of such Lien, shall be deemed to involve the creation of
Indebtedness in an amount equal to the principal amount guaranteed or secured by
such Lien.
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Section 1006. Limitation on Sale and Leaseback Transactions.
(a) The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer, directly or indirectly, except to the Company or a
Restricted Subsidiary, any Principal Property as an entirety, or any substantial
portion thereof, with the intention of taking back a lease of such property,
except a lease for a period of two years or less at the end of which it is
intended that the use of such property by the lessee will be discontinued;
provided that, notwithstanding the foregoing, the Company or any Restricted
Subsidiary may sell any such Principal Property and lease it back for a longer
period:
(1) if the Company or such Restricted Subsidiary would be entitled,
pursuant to Section 1005 hereof, to create a mortgage on the property to be
leased securing Funded Debt in an amount equal to the Attributable Debt with
respect to such sale and leaseback transaction without equally and ratably
securing the outstanding Securities; or
(2) if the Company promptly informs the Trustee of such transaction,
the net proceeds of such transaction are at least equal to the Fair Market Value
(as determined by Board Resolution) of such property, and the Company causes an
amount equal to the net proceeds of the sale to be applied to the retirement,
within 180 days after receipt of such proceeds, of Funded Debt Incurred or
assumed by the Company or a Restricted Subsidiary (including the Securities);
provided further that, in lieu of applying all or any part of such net proceeds
to such retirement, the Company may, within 75 days after such sale or transfer,
deliver or cause to be delivered to the applicable trustee for cancellation
either debentures or notes evidencing Funded Debt of the Company (which may
include the Outstanding Securities) or of a Restricted Subsidiary previously
authenticated and delivered by the applicable trustee, and not theretofore
tendered for sinking fund purposes or called for a sinking fund or otherwise
applied as a credit against an obligation to redeem or retire such Notes or
debentures. If the Company so delivers debentures or Notes to the applicable
trustee with an Officers' Certificate, the amount of cash that the Company will
be required to apply to the retirement of Funded Debt will be reduced by an
amount equal to the aggregate of the then applicable optional redemption prices
(not including any optional sinking fund redemption prices) of such debentures
or Notes, or if there are no such redemption prices, the principal amount of
such debentures or Notes, provided, that in the case of debentures or Notes
which provide for an amount less than the principal amount thereof to be due and
payable upon a declaration of the maturity thereof, such amount of cash shall be
reduced by the amount of principal of such debentures or Notes that would be due
and payable as of the date of such application upon a declaration of
acceleration of the maturity thereof pursuant to the terms of the indenture
pursuant to which such debentures or Notes were issued; or
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(3) if the Company, within 180 days after the sale or transfer, applies
or causes a Restricted Subsidiary to apply an amount equal to the greater of the
net proceeds of such sale or transfer or Fair Market Value of the Principal
Property so sold and leased back at the time of entering into such sale and
leaseback transaction (in either case as determined by Board Resolution of the
Company) to purchase other Principal Property having a Fair Market Value at
least equal to the Fair Market Value of the Principal Property (or portion
thereof) sold or transferred in such sale and leaseback transaction.
(b) Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may enter into sale and leaseback transactions in addition to those
permitted in this paragraph and without any obligation to retire any outstanding
notes or other Funded Debt, provided that at the time of entering into such sale
and leaseback transactions and after giving effect thereto, together with any
Liens permitted under Section 1005(c) hereof, Exempted Debt does not exceed 20%
of Consolidated Net Tangible Assets.
Section 1007. Provisions of Financial Statements.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to Sections 13(a) or 15(d) if the Company was so subject, such
documents to be filed with the Commission on or prior to the date (the "Required
Filing Date") by which the Company would have been required so to file such
documents if the Company was so subject. The Company will also in any event (x)
within 15 days of each Required Filing Date (i) transmit by mail to all holders,
as their names and addresses appear in the security register, without cost to
such holders and (ii) file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the Commission pursuant to Sections 13(a) or 15(d) of the Exchange
Act if the Company were subject to either of such Sections and (y) if filing
such documents by the Company with the Commission is not permitted under the
Exchange Act, promptly upon written request and payment of the reasonable cost
of duplication and delivery, supply copies of such documents to any prospective
holder at the Company's cost.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005, 1006 and 1007 if, before or
after the time for such compliance, the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series affected thereby (voting as one class) shall, by Act of such Holders,
waive such compliance in such instance with such covenant or provision, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
Each series of Securities will be redeemable, as a whole or in part, at
the option of the Company, at any time or from time to time, at a Redemption
Price (a "Redemption Price") equal to the greater of (i) 100% of the principal
amount of the applicable series of Securities to be redeemed and (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
on the applicable series of Securities discounted to the Redemption Date (the
"Redemption Date") on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Rate, plus __ basis points for
the __% Notes due 200_ and ___ basis points for the __% Notes due 200_,
respectively, plus, in each case, accrued interest thereon to the Redemption
Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Company Order and an Officers' Certificate.
In case of any redemption at the election of the Company, the Company shall, not
less than 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice period shall be satisfactory to the Trustee), notify the Trustee
in writing of such Redemption Date and of the principal amount of the applicable
series of Securities to be redeemed.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all of the applicable series of Securities are to be
redeemed, the particular Securities or portions thereof to be redeemed shall be
selected not more than 60 nor less than 30 days prior to the Redemption Date.
The Trustee shall select the Securities or portions thereof to be redeemed on a
pro rata basis, by lot or by any other method the Trustee shall deem fair and
appropriate. The amounts to be redeemed shall be equal to $1,000 or any integral
multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at its address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of a series are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed and that after the Redemption Date upon
surrender of such Security, new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 1002 where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Securities; and
(i) the procedures that a Holder must follow to surrender the
Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name and at the expense of the Company. If the Company
elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 1105.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to 10:00 a.m. New York City time on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company or any of its Affiliates is acting as Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date or Special Payment Date) accrued interest on,
all the applicable series of Securities or portions thereof which are to be
redeemed on that date. The Paying Agent shall promptly mail or deliver to
Holders of Securities so redeemed payment in an amount equal to the Redemption
Price of the Securities purchased from each such Holder. Subject to Section
601(f), all money, if any, earned on funds held in trust by the Trustee or any
Paying Agent shall be remitted to the Company.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities of
the series so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities of such series shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
and Special Record Dates according to the terms and the provisions of Section
308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
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Section 1108. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part shall be
surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 1002 (with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar or the
Trustee, as the case may be, duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities as expressly provided for herein) as to all Outstanding Securities of
any series hereunder, and the Trustee, upon Company Request and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities of such series theretofore authenticated and
delivered (other than (i) lost, stolen or destroyed Securities of such
series which have been replaced or paid as provided in Section 308 or
(ii) all Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(2) all such Securities of such series not theretofore delivered to
the Trustee for cancellation (i) have become due and payable or, (ii)
will become due and payable at their Stated Maturity within one year;
and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount in United States
dollars sufficient (in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) to pay and discharge (without
consideration of any reinvestment and after payment of all taxes or
other charges and assessments in respect thereof payable by the
Trustee) the entire Indebtedness on the Securities of such series not
theretofore delivered to the Trustee for cancellation, including the
principal of, premium, if any, and accrued interest on, the Securities
of such series at such Maturity, Stated Maturity or Redemption Date;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Independent Counsel, in form and substance satisfactory to the
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Trustee, each stating that (i) all conditions precedent herein relating to the
satisfaction and discharge hereof have been complied with, (ii) no default with
respect to the Securities of such series has occurred and is continuing on the
date of such deposit and (iii) such deposit does not result in a breach or
violation of, or constitute a default under, the Indenture or any other
agreement or instrument to which the Company is a party.
Notwithstanding the satisfaction and discharge hereof, the obligations
of the Company to the Trustee under Section 607 and, if United States dollars
shall have been deposited with the Trustee pursuant to subclause (2) of
subsection (a) of this Section 1201, the obligations of the Trustee under
Section 1202 and the last paragraph of Section 1003 shall survive.
Section 1202. Application of Trust Money.
Subject to the provisions of the last paragraph Section 1003, all
United States dollars deposited with the Trustee pursuant to Section 1201 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on, the Securities for whose payment such United
States dollars have been deposited with the Trustee.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
REPUBLIC SERVICES, INC.
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------
Name:
Title:
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EXHIBIT A
[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 306 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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REPUBLIC SERVICES, INC.
------------------
___% NOTE DUE 200_
CUSIP NO. ___________
No. 1 $____,000,000
Republic Services, Inc., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of _____ HUNDRED MILLION DOLLARS
($____,000,000) United States dollars on ________, 200_, at the office or agency
of the Company referred to below, and to pay interest thereon from __________,
1999, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on June 1 and December 1 in each year,
commencing __________, 1999 at the rate of ___% per annum, in United States
dollars, until the principal hereof is paid or duly provided for. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid, or duly
provided for, and interest on such defaulted interest at the interest rate borne
by the Securities, to the extent lawful, shall forthwith cease to be payable to
the Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security (or any Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice thereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in this
Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of this Security, will be made at the office
or agency of the Company in The City of New York maintained for such purpose
(which initially will be a corporate trust office of the Trustee or its
affiliate located at 000 Xxxxxxx Xxxxxx, Xxxxx
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21W, New York, NY 10286), or at such other office or agency as may be maintained
for such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
REPUBLIC SERVICES, INC.
By:
-----------------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the ___% Notes due 200_ referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE SIDE OF SECURITY]
REPUBLIC SERVICES, INC.
___% Note due 200__
This Security is one of a duly authorized issue of Securities of the
Company designated as its ___% Notes due 200__ (herein called the "Securities"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $___,000,000, issued under and subject to the
terms of an indenture (herein called the "Indenture") dated as of May __ , 1999,
between the Company and The Bank of New York, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities may be redeemed at any time, at the option of the
Company, in whole or in part, at any time and from time to time, upon not less
than 30 and not more than 60 days' notice to the Holders thereof as provided in
the Indenture, at a Redemption Price equal to the greater of (1) 100% of the
principal amount of the Securities to be redeemed and (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Rate, plus __
basis points, plus, in each case, accrued interest to the Redemption Date
(subject to the right of holders of record of such Securities on relevant record
dates to receive interest due on an interest payment date), if any.
If less than all of the Securities are to be redeemed, the Trustee
shall select, not more than 60 nor less than 30 days before the Redemption Date,
the Securities or portions thereof to be redeemed on a pro rata basis, by lot or
by any other method the Trustee shall deem fair and appropriate.
In the case of any redemption of Securities in accordance with the
Indenture, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities of record as
of the close of business on the relevant Regular Record Date or Special Record
Date referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
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In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain covenants and Defaults and
Events of Default, in each case upon compliance with certain conditions set
forth therein.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders and certain amendments
which required the consent of all of the Holders) as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of at
least a majority in aggregate principal amount of the Securities of all series
at the time Outstanding that are affected (voting as one class). The Indenture
also contains provisions permitting the Holders of at least a majority in
aggregate principal amount of the Securities (100% of the Holders in certain
circumstances) of all series at the time Outstanding that are affected (voting
as one class), on behalf of the Holders of all the Securities of such affected
series, to waive compliance by the Company with certain provisions of the
Indenture and the Securities of such series and certain past Defaults and Events
of Default under the Indenture and the Securities and their consequences. Any
such consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, and premium, if any, and interest on,
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a
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written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities in certificated form are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities are exchangeable for a like aggregate principal amount
of Securities of a differing authorized denomination, as requested by the Holder
surrendering the same.
Except as indicated in the Indenture, no service charge shall be made
for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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EXHIBIT B
[Legend if Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 306 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT
AND ANY SUCH CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
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REPUBLIC SERVICES, INC.
------------------
___% NOTE DUE 200_
CUSIP NO. _________
No. 1 $____,000,000
Republic Services, Inc., a Delaware corporation (herein called the
"Company," which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of _____ HUNDRED MILLION DOLLARS
($____,000,000) United States dollars on ________, 200_, at the office or agency
of the Company referred to below, and to pay interest thereon from __________,
1999, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on June 1 and December 1 in each year,
commencing __________, 1999 at the rate of ___% per annum, in United States
dollars, until the principal hereof is paid or duly provided for. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security is registered at the close of business on the
Regular Record Date for such interest, which shall be the May 15 or November 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid, or duly
provided for, and interest on such defaulted interest at the interest rate borne
by the Securities, to the extent lawful, shall forthwith cease to be payable to
the Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security (or any Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice thereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in this
Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of this Security, will be made at the office
or agency of the Company in The City of New York maintained for such purpose
(which initially will be a corporate trust office of the Trustee or its
affiliate located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 10286), or at
such other office or agency as may be maintained for such purpose, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
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address of the Person entitled thereto as such address shall appear on the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
REPUBLIC SERVICES, INC.
By:
------------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the ___% Notes due 200_ referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE SIDE OF SECURITY]
REPUBLIC SERVICES, INC.
___% Note due 200__
This Security is one of a duly authorized issue of Securities of the
Company designated as its ___% Notes due 200__ (herein called the "Securities"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to $___,000,000, issued under and subject to the
terms of an indenture (herein called the "Indenture") dated as of May __ , 1999,
between the Company and The Bank of New York, as trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities may be redeemed at any time, at the option of the
Company, in whole or in part, at any time and from time to time, upon not less
than 30 and not more than 60 days' notice to the Holders thereof as provided in
the Indenture, at a Redemption Price equal to the greater of (1) 100% of the
principal amount of the Securities to be redeemed and (2) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the Redemption Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Rate, plus __
basis points, plus, in each case, accrued interest to the Redemption Date
(subject to the right of holders of record of such Securities on relevant record
dates to receive interest due on an interest payment date), if any.
If less than all of the Securities are to be redeemed, the Trustee
shall select, not more than 60 nor less than 30 days before the Redemption Date,
the Securities or portions thereof to be redeemed on a pro rata basis, by lot or
by any other method the Trustee shall deem fair and appropriate.
In the case of any redemption of Securities in accordance with the
Indenture, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities of record as
of the close of business on the relevant Regular Record Date or Special Record
Date referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
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In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal
amount of all the Securities may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain covenants and Defaults and
Events of Default, in each case upon compliance with certain conditions set
forth therein.
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders and certain amendments
which required the consent of all of the Holders) as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture and the Securities at
any time by the Company and the Trustee with the consent of the Holders of at
least a majority in aggregate principal amount of the Securities of all series
at the time Outstanding that are affected (voting as one class). The Indenture
also contains provisions permitting the Holders of at least a majority in
aggregate principal amount of the Securities (100% of the Holders in certain
circumstances) of all series at the time Outstanding that are affected (voting
as one class), on behalf of the Holders of all the Securities of such affected
series, to waive compliance by the Company with certain provisions of the
Indenture and the Securities of such series and certain past Defaults and Events
of Default under the Indenture and the Securities and their consequences. Any
such consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company or any
other obligor on the Securities (in the event such other obligor is obligated to
make payments in respect of the Securities), which is absolute and
unconditional, to pay the principal of, and premium, if any, and interest on,
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a
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97
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities in certificated form are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, the Securities are exchangeable for a like aggregate principal amount
of Securities of a differing authorized denomination, as requested by the Holder
surrendering the same.
Except as indicated in the Indenture, no service charge shall be made
for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE TO CONFLICT OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
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