EXHIBIT 4.1
================================================================================
COMCAST CORPORATION
and
BANK OF MONTREAL TRUST COMPANY, Trustee
INDENTURE
Dated as of June 15, 1999
------------------
Senior Debt Securities
================================================================================
TABLE OF CONTENTS
--------------
PAGE
----
ARTICLE 1
SECTION 1.01 Certain Terms Defined.............................................1
ARTICLE 2
SECTION 2.01 Forms Generally...................................................7
SECTION 2.02 Form of Trustee's Certification of Authentication.................8
SECTION 2.03 Amount Unlimited; Issuable in Series..............................8
SECTION 2.04 Authentication and Delivery of Securities........................10
SECTION 2.05 Execution of Securities..........................................11
SECTION 2.06 Certificate of Authentication....................................12
SECTION 2.07 Denomination and Date of Securities; Payments of Interest. ......12
SECTION 2.08 Registration, Transfer and Exchange..............................13
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities........14
SECTION 2.10 Cancellation of Securities; Destruction Thereof..................15
SECTION 2.11 Temporary Securities.............................................15
SECTION 2.12 Computation of Interest..........................................16
ARTICLE 3
SECTION 3.01 Payment of Principal and Interest................................16
SECTION 3.02 Offices for Payments, etc........................................16
SECTION 3.03 Paying Agents....................................................16
SECTION 3.04 Certificate of the Issuer........................................18
SECTION 3.05 Securityholders Lists............................................18
SECTION 3.06 Reports by the Issuer............................................18
SECTION 3.07 Corporate Existence..............................................19
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations................19
SECTION 3.09 Further Assurances...............................................19
ARTICLE 4
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default..................................................20
PAGE
----
SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt........................................................22
SECTION 4.03 Application of Proceeds..........................................25
SECTION 4.04 Suits for Enforcement............................................26
SECTION 4.05 Restoration of Rights on Abandonment of Proceedings..............26
SECTION 4.06 Limitations on Suits by Securityholder...........................26
SECTION 4.07 Unconditional Right of Securityholders to Institute Certain
Suits.......................................................27
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default...........................................27
SECTION 4.09 Control by Securityholders.......................................28
SECTION 4.10 Waiver of Past Defaults..........................................28
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.......................................28
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................29
ARTICLE 5
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default............................................29
SECTION 5.02 Certain Rights of the Trustee....................................31
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof...............32
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.........33
SECTION 5.05 Moneys Held by Trustee...........................................33
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim. .....................................................33
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc...........34
SECTION 5.08 Persons Eligible for Appointment as Trustee. ....................34
SECTION 5.09 Resignation and Removal; Appointment of Successor
Trustee.....................................................34
SECTION 5.10 Acceptance of Appointment by Successor...........................36
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee.........................................37
SECTION 5.12 Reports to the Trustee...........................................37
ii
PAGE
----
ARTICLE 6
SECTION 6.01 Evidence of Action Taken by Securityholders......................38
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date. ...................................38
SECTION 6.03 Holders to be Treated as Owners..................................39
SECTION 6.04 Securities Owned by Issuer Deemed Not Outstanding................39
SECTION 6.05 Right of Revocation of Action Taken..............................40
ARTICLE 7
SECTION 7.01 Supplemental Indentures Without Consent of
Securityholders.............................................40
SECTION 7.02 Supplemental Indentures With Consent of Securityholders..........42
SECTION 7.03 Effect of Supplemental Indenture.................................44
SECTION 7.04 Documents to Be Given to Trustee.................................44
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures..................................................44
ARTICLE 8
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms...................45
SECTION 8.02 Successor Corporation Substituted................................45
ARTICLE 9
SECTION 9.01 Defeasance Within One Year of Payment............................46
SECTION 9.02 Defeasance.......................................................47
SECTION 9.03 Covenant Defeasance..............................................49
SECTION 9.04 Application of Trust Money.......................................50
SECTION 9.05 Repayment to Issuer..............................................50
ARTICLE 10
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability.....................51
iii
PAGE
----
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.............................................51
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture.............51
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders.............................................51
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein.....................................52
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays.................53
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.......................................53
SECTION 10.08 New York Law to Govern..........................................53
SECTION 10.09 Counterparts....................................................54
SECTION 10.10 Effect of Headings..............................................54
ARTICLE 11
SECTION 11.01 Applicability of Article........................................54
SECTION 11.02 Notice of Redemption; Partial Redemptions.......................54
SECTION 11.03 Payment of Securities Called for Redemption.....................55
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption....................................56
SECTION 11.05 Mandatory and Optional Sinking Funds............................56
SECTION 11.06 Conversion Arrangement on Call For Redemption...................59
ARTICLE 12
SECTION 12.01 Applicability of Article........................................60
SECTION 12.02 Right of Securityholders to Convert Securities..................60
SECTION 12.03 Issuance of Shares of Capital Stock on Conversion...............61
SECTION 12.04 No Payment or Adjustment for Interest or Dividends..............62
SECTION 12.05 Adjustment of Conversion Rate...................................63
SECTION 12.06 No Fractional Shares to Be Issued...............................67
SECTION 12.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance..................................68
SECTION 12.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action.....................................68
SECTION 12.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities..................................................69
SECTION 12.10 Compliance with Governmental Requirements.......................70
iv
SECTION 12.11 Payment of Taxes upon Certificates for Shares Issued
Upon Conversion.............................................70
SECTION 12.12 Trustee's Duties with Respect to Conversion Provisions..........70
THIS INDENTURE, dated as of June 15, 1999 between COMCAST CORPORATION, a
Pennsylvania corporation (the "Issuer"), and BANK OF MONTREAL TRUST COMPANY, a
New York banking corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Issuer has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
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. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Authorized Newspaper" means a newspaper in the English language or in
an official language of the country of publication, customarily printed on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. If, because of temporary suspension of
publication or general circulation of any newspaper or for any other reason, it
is impossible or impracticable to make any publication of any notice required by
this Indenture in the manner herein provided, such publication or other notice
in lieu thereof which is made at the written direction of the Issuer by the
Trustee shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"Capital Stock" means, with respect to any Person, including the Issuer,
any and all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's capital stock or
equity, including, without limitation, all Common Stock and Preferred Stock.
"Class A Common Stock" means the Class A Common Stock, $1.00 par value,
of the Issuer.
"Class A Special Common Stock" means the Class A Special Common Stock,
$1.00 par value, of the Issuer.
"Closing Price" on any day when used with respect to any class of
Capital Stock means (i) if the stock is then listed or admitted to trading on a
national securities exchange in the United States, the last reported sale price,
regular way, for the stock as reported in the consolidated transaction or other
reporting system for securities listed or traded on such exchange, or (ii) if
the stock is listed on the
2
National Association of Securities Dealers, Inc. Automated Quotations System
National Market System (the "NASDAQ National Market System"), the last reported
sale price, regular way, for the stock, as reported on such list, or (iii) if
the stock is not so admitted for trading on any national securities exchange or
the NASDAQ National Market System, the average of the last reported closing bid
and asked prices reported by the National Association of Securities Dealers,
Inc. Automated Quotations System as furnished by any member in good standing of
the National Association of Securities Dealers, Inc., selected from time to time
by the Issuer for that purpose or as quoted by the National Quotation Bureau
Incorporated. In the event that no such quotation is available for any day, the
Board of Directors shall be entitled to determine in good faith the current
market price on the basis of such quotations as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at Wall Street Plaza, 88 Pine Street, 19th Floor,
New York, New York, 10005, Attention: Corporate Trust Department.
"Default" means any Event of Default as defined in Section 4.01 and any
event that is, or after notice or passage of time or both would be, an Event of
Default.
"Event of Default" means any event or condition specified as such in
Section 4.01.
"Holder", "holder of Securities", "Securityholder" or other similar
terms mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
3
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article 5) Comcast
Corporation, a Pennsylvania corporation, and, subject to Article 8, its
successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.05.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 10.05,
if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.01.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 6.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer
for the holders of such Securities (if the Issuer shall act as its own
paying agent),
4
provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 4.01.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) 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.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Registered Security" means any Security registered on the register
maintained by the Issuer pursuant to Section 2.08.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
the cashier, the secretary, the treasurer, any trust officer, any assistant
trust officer, any assistant vice president, any assistant cashier, any
assistant secretary, any assistant treasurer, or any other officer or assistant
officer of the Trustee
5
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of all votes
represented by all classes of outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 5, shall also include
any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as
of which this Indenture was originally executed.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency of instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
6
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Wholly-Owned" is defined to mean, with respect to any Subsidiary of any
person, such Subsidiary if all of the outstanding common stock or other similar
equity ownership interests (but not including preferred stock) in such
Subsidiary (other than any director's qualifying shares or investments by
foreign nationals mandated by applicable law) is owned directly or indirectly by
such person.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
SECTION 2.01 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to a resolution of the Board of Directors or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities. The Issuer
shall furnish any such legends to the Trustee in writing.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
7
SECTION 2.02 Form of Trustee's Certification of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
BANK OF MONTREAL TRUST
COMPANY,
as Trustee
By:
-----------------------------------
Authorized Signatory
SECTION 2.03 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) the date or dates on which the principal of the Securities of
the series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is
payable;
8
(e) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.02);
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices
at which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(h) the obligation, if any, of the Issuer to permit the conversion
of the Securities of such series into Class A Common Stock or Class A
Special Common Stock, or a combination thereof, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period and any other provision in addition to or in lieu of those set
forth in this Indenture relative to such obligation);
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(l) any trustees, authenticating or paying agents, transfer agents
or registrar or any other agents with respect to the Securities of such
series.
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board of Directors or in any such indenture supplemental
hereto.
9
SECTION 2.04 Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
Chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to Section 5.01) shall be fully protected in
relying upon:
(a) a certified copy of any resolution or resolutions of the Board
of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause 2.04(b) below;
(b) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any, and the
documentation required to be delivered pursuant to Section 7.04;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.01 and 2.03, respectively
and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance with Section
10.05, to the effect that
(i) that the form or forms and terms of such Securities have
been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Section
2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) that such Securities, when authenticated and delivered by
the Trustee and issued by the Issuer in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms;
10
(iii) that all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have been
complied with; and
(iv) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability.
SECTION 2.05 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) by its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.06 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so
11
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
SECTION 2.07 Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.03. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08 Registration, Transfer and Exchange. The Issuer will keep
or cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.02 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such register shall be
in written form in the English language or in any other form capable of being
converted into
12
such form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.02, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a like
aggregate principal amount.
Any Security or Securities of any series may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal
aggregate principal amount. Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.02, and the Issuer shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption, conversion or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
mailing or first publication of notice of redemption of Securities of such
series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be
redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.09 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
13
and shall be surrendered to the Trustee, the Issuer shall execute, and the
Trustee shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security. If the Holder of any Security claims that
the Security has been lost, destroyed or wrongfully taken, the Issuer shall
execute, and the Trustee shall authenticate and deliver, a new Security of the
same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the lost, destroyed or wrongfully taken Security, if the
applicant so requests before the Issuer has notice that the Security has been
acquired by a protected purchaser, and the applicant furnishes to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and the applicant satisfies other reasonable requirements imposed
by the Issuer.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee and its counsel) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or wrongful taking, the
applicant shall also furnish to the Issuer and the Trustee and any agent of the
Issuer or the Trustee evidence to their satisfaction of the destruction, loss or
wrongful taking of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or wrongfully taken Security
shall be at any time enforceable by anyone and shall be entitled to all the
benefits of (but shall be subject to all the limitations of rights set forth in)
this Indenture equally and proportionately with any and all other Securities of
such series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or wrongfully taken Securities
and shall preclude any and all other rights or remedies.
14
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, conversion, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be canceled by it; and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall dispose of canceled Securities held by it in
accordance with the record retention policies of the Trustee in effect from time
to time and, if such cancelled certificates are destroyed, shall deliver a
certificate of destruction to the Issuer. If the Issuer shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.02, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series a like aggregate principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.12 Computation of Interest. Except as otherwise specified in
the Securities of a series, interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
15
ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.01 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series at the place or places, at the respective times
and in the manner provided in such Securities. Each installment of interest on
the Securities of any series may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto as they shall appear on the registry books of the Issuer.
SECTION 3.02 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain in the Borough of Manhattan, The
City of New York an office or agency (a) where the Securities may be presented
for payment, (b) where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, (c) where notices and
demands to or upon the Issuer in respect of the Securities or of this Indenture
may be served and (d) for Securities of each series that is convertible, where
such Securities may be presented for conversion. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.03, the Issuer hereby initially designates the Corporate Trust Office
of Trustee as the office to be maintained by it for each such purpose. In case
the Issuer shall fail to so designate or maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.03 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of
the holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any
16
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the
failure referred to in clause 3.03(b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Whenever the Issuer shall have one or more paying agents for any series
of Securities, it will, on or before each due date of the principal of or
interest on any Securities of such series, deposit with the paying agent or
agents for the Securities of such series a sum, by 10:00 a.m. New York time in
immediately available funds on the payment date, sufficient to pay the principal
or interest so becoming due with respect to the Securities of such series, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee in writing of any failure so to act.
Anything in this section to the contrary notwithstanding, the Issuer may
at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this section is subject to the provisions
of Section 9.05.
SECTION 3.04 Certificate of the Issuer. Within 120 days after the close
of the fiscal year ended December 31, 1999, and within 120 days after the close
of each fiscal year thereafter, the Issuer will furnish to the Trustee a brief
certificate
17
(which need not comply with Section 10.05) from the principal executive,
financial or accounting officer of the Issuer as to his or her knowledge of the
Issuer's compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
At the time such certificate is filed, the Issuer will also file with
the Trustee a letter or statement of the independent accountants who shall have
certified the financial statements of the Issuer for its preceding fiscal year
in connection with the annual report of the Issuer to its shareholders for such
year to the effect that, in making the examination necessary for certification
of such financial statements, they have obtained no knowledge of any default by
the Issuer in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, which default remains uncured at the date
of such letter or statement, or, if they shall have obtained knowledge of any
such uncured default, specifying in such letter or statement such default or
defaults and the nature and status thereof, it being understood that such
accountants shall not be liable directly or indirectly for failure to obtain
knowledge of any such default or defaults, and that nothing contained in this
Section 3.04 shall be construed to require such accountants to make any
investigation beyond the scope required in connection with such examination.
SECTION 3.05 Securityholders Lists. If and so long as the Trustee shall
not be the Security registrar for the Securities of any series, the Issuer will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of such series pursuant to Section 312 of the Trust Indenture Act of
1939 (a) semi-annually not more than 10 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for
non-interest bearing Securities in each year, and (b) at such other times as the
Trustee may request in writing, within thirty days after receipt by the Issuer
of any such request as of a date not more than 10 days prior to the time such
information is furnished.
SECTION 3.06 Reports by the Issuer The Issuer covenants to:
(a) file with the Trustee, within 15 days after the Issuer is required
to file the same with the Commission, copies of the annual reports and of the
information, documents, and other reports which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer is not required to file with
the Commission, annual reports, information, documents and other reports
pursuant to either Section 13 or Section 15(d) of the Securities Exchange Act of
1934, then
18
the Issuer will file with the Trustee and will file with the Commission, in
accordance with rules and regulations prescribed by the Commission, such of the
supplementary and periodic information, documents and reports required pursuant
to Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed in
such rules and regulations;
(b) file with the Trustee and the Securities and Exchange Commission, in
accordance with the rules and regulations prescribed from time to time by the
Securities and Exchange Commission, such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be required by such rules and
regulations;
(c) transmit to the Securityholders, in the manner and to the extent
provided in Section 10.04, such summaries of any information, documents and
reports required to be filed with the Trustee pursuant to the provisions of
subdivisions (a) and (b) of this Section 3.06 as may be required by the rules
and regulations of the Securities and Exchange Commission.
SECTION 3.07 Corporate Existence. So long as any of the Securities
remain unpaid, the Issuer will at all times (except as otherwise provided or
permitted elsewhere in this Indenture) do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
SECTION 3.08 Restrictions on Mergers, Sales and Consolidations. So long
as any of the Securities remain unpaid, the Issuer will not consolidate or merge
with or sell, convey or lease all or substantially all of its property to any
other corporation except as permitted in Article 8 hereof.
SECTION 3.09 Further Assurances. From time to time whenever requested by
the Trustee, the Issuer will execute and deliver such further instruments and
assurances and do such further acts as may be reasonably necessary or proper to
carry out more effectually the purposes of this Indenture or to secure the
rights and remedies hereunder of the holders of the Securities of any series.
19
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 4.01 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (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):
(a) default in the payment of any installment of interest upon any
of the Securities of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on
any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer in respect of the Securities of such series
(other than a covenant or warranty in respect of the Securities of such
series a default in whose performance or whose breach is elsewhere in
this section specifically dealt with), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of all series affected thereby, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
or for any substantial part of its property or ordering the winding up
or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 180 consecutive days; or
20
(e) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
(f) any other Event of Default provided in the supplemental
indenture or resolution of the Board of Directors under which such
series of Securities is issued or in the form of Security for such
series.
If an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or
4.01(f) above occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the holders of not less than 25%
in aggregate principal amount of the Securities of any affected series then
Outstanding hereunder (each such series voting as a separate class) by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) of all Securities of such series and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable. If an
Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is
continuing, then the principal amount of all the Securities then outstanding and
interest accrued thereon, if any, shall be and become immediately due and
payable, without any notice or other action by any Holder or the Trustee, to the
full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
21
Securities of such series (or at the respective rates of interest or Yields to
Maturity of all the Securities, as the case may be) to the date of such payment
or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein--then and in every such case the holders
of a majority in aggregate principal amount of all the then outstanding
Securities of all such series that have been accelerated, each such series
voting as a separate class, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.02 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise--then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
22
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) 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 reasonable compensation to the Trustee
and each
23
predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon
the Securities of any series, or to the creditors or property of the
Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or 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
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents
24
and attorneys, shall be for the ratable benefit of the holders of the Securities
in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.03 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, and
all other amounts due to the Trustee or any predecessor Trustee pursuant
to Section 5.06;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of
25
interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal and interest or yield
to maturity, without preference or priority of principal over interest
or yield to maturity, or of interest or yield to maturity over
principal, or of any installment of interest over any other installment
of interest, or of any Security of such series over any other Security
of such series, ratably to the aggregate of such principal and accrued
and unpaid interest or yield to maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.04 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may proceed to
protect and enforce the rights vested in it by this Indenture, either at law or
in equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.05 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.06 Limitations on Suits by Securityholder. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then outstanding shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity
26
as it may require against the costs, expenses and liabilities to be incurred
therein or thereby and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.09; it being understood and
intended, and being expressly covenanted by the Holder of every Security with
every other Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.07 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 4.08 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 4.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 4.06, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
27
SECTION 4.09 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction.
Nothing in this Indenture shall impair the right of the Trustee to take
any action which is not inconsistent with such direction or directions by
Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding (each such series voting as a
separate class) may on behalf of the Holders of all the Securities of such
series waive an existing default or Event of Default, except a default in the
payment of Principal of or interest on any Security as specified in clauses (a)
or (b) of Section 4.01 or in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Holder affected as
provided in Section 7.02. In the case of any such waiver, the Issuer, the
Trustee and the Holders of the Securities of each series affected shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances The Trustee shall give to the Securityholders of any
28
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to Responsible Officers of the Trustee
which have occurred with respect to such series, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or interest on any of the Securities of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders of such series.
SECTION 4.12 Right of Court to Require Filing of Undertaking to Pay
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 Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, to any suit
instituted by a Holder pursuant to Section 4.07.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise such
29
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(a) Prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
the Securities of any Series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that:
(1) this subsection (b) shall not be construed to limit the
effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the holders relating to the time,
method and place of conducting any proceeding for any remedy
30
available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act of 1939.
Whether or not therein expressly provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
5.01.
SECTION 5.02 Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon,
security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary or
an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of
this
31
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in connection with such
request, order 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;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities of all series affected 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 shall be
paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand;
(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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered
or omitted in good faith and believed by it to be authorized or within
the discretion, rights or powers conferred upon it by this Indenture.
SECTION 5.03 Trustee Not Responsible for Recitals, Disposition 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 Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be
32
accountable for the use or application by the Issuer of any of the Securities or
of the proceeds thereof.
SECTION 5.04 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, 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 or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.05 Moneys Held by Trustee. All moneys received by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.06 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed in
writing from time to time by the Issuer and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent
any such expense, disbursement or advance may arise from its negligence or bad
faith. The Issuer also covenants and agrees to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the extent such
loss, liability or expense is due to the negligence or bad faith of the Trustee
or such predecessor Trustee. The obligations of the Issuer under this section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee. Such additional indebtedness shall be a senior claim and
lien to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Securities, and the
33
Securities are hereby subordinated to such senior claim. The parties agree that
if the Trustee renders services following an Event of Default under Section
4.01(d) or (e), compensation for such services is intended to constitute
administrative expense under any bankruptcy law.
SECTION 5.07 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.08 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939 and which has, or is a Wholly-Owned Subsidiary,
directly or indirectly of a bank holding company which has, a combined capital
and surplus of $50,000,000. If such corporation or holding company publishes
reports of condition at least annually, pursuant to law or to the requirements
of a Federal, State or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation or holding company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.09 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor Trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 4.12, on behalf of
34
himself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the
Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor Trustee so appointed and to the Issuer the
evidence provided in Section 6.01 of the action in that regard taken by the
Securityholders.
35
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 5.09 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor. Any successor
Trustee appointed as provided in Section 5.09 shall execute and deliver to the
Issuer and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
with respect to all or any applicable series shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor Trustee, upon payment of its charges then unpaid,
the Trustee ceasing to act shall, subject to Section 5.06, pay over to the
successor Trustee all moneys 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 Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights and powers. Any Trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor Trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts under separate
indentures.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor Trustee is
acting as
36
Trustee at their last addresses as they shall appear in the Security register.
If the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.08, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series 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 of any series 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 of
such series 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 of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 5.12 Reports to the Trustee. (a) On May 15, 2000, and on or
before May 15 in every year thereafter, so long as any Securities are
Outstanding hereunder and as required by the Trust Indenture Act of 1939, the
Trustee shall transmit to the Securityholders and the Issuer, as hereinafter in
this Section 5.12 provided, a brief report dated as of the preceding March 15
with respect to:
(i) its eligibility under Section 5.08, or in lieu thereof, if to
the best of its knowledge it has continued to be eligible under such
Section, a written statement to such effect; and
(ii) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which
37
in its opinion materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by
it in accordance with the provisions of Section 4.11.
(b) Reports pursuant to this Section 5.12 shall be transmitted by mail
to all holders of Securities as the names and addresses of such holders appear
upon the registry books of the Issuer at the expense of the Issuer.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.02 Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved by the
certificate of any notary public or other officer authorized to take
acknowledgment of deeds, that the Person executing such instrument acknowledged
to such notary public or other such officer the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary public
or other officer. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, as the case may be, or by any other Person acting in
a representative capacity, such certificate or affidavit shall also constitute
sufficient proof of such Person's authority. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
The Issuer may set a record date for purposes of determining the identity of
holders of Securities of any series entitled to vote or consent to any action
referred to in Section 6.01, which record date may be set at any time or from
time to time by notice to the Trustee, for any date or dates (in the case of any
adjournment or reconsideration) not more
38
than 60 days nor less than five days prior to the proposed date of such vote or
consent, and thereafter, notwithstanding any other provisions hereof, only
holders of Securities of such series of record on such record date shall be
entitled to so vote or give such consent or revoke such vote or consent.
SECTION 6.03 Holders to be Treated as Owners. Prior to due presentment
of a Security for registration of transfer, the Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name
any Security shall be registered upon the Security register for such series as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 6.04 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities as to which the Trustee has received written notice are so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be entitled to accept such
39
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 6.05 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors certified
to the Trustee, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article 8;
(b) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
40
matters or questions arising under this Indenture or under any
supplemental indenture as the Board of Directors may deem necessary or
desirable and which shall not adversely affect the interests of the
Holders of the Securities in any material respect;
(c) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 5.10;
(e) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act
of 1939;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to make any change that does not adversely affect the rights of
any Holder;
(h) as provided by or pursuant to a Board Resolution or indenture
supplemental hereto establishing the terms of one or more series of
Securities;
(i) to add to the covenants of the Issuer such new covenants,
restrictions, conditions or provisions as its Board of Directors shall
consider to be for the protection of the Holders of Securities, and with
respect to which the Trustee has received an Opinion of Counsel to a
similar effect, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default; provided,
that in respect of any such additional covenant, restriction, condition
or provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the
41
Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default; or
(j) to make any change so long as no Securities are Outstanding.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.02.
SECTION 7.02 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 6) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall without the consent of each Holder affected
thereby:
(i) change the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's
Security;
(ii) reduce the Principal thereof or the rate of interest thereon,
or any premium payable with respect thereto;
(iii) change any place of payment where, or the currency in which,
any Security or any premium or the interest thereon is payable;
(iv) change the provisions for calculating the optional redemption
price, including the definitions relating thereto;
(v) make any change to Section 4.07 or 4.10 (except to include other
provisions subject to Section 4.10);
42
(vi) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is
required for any such supplemental indenture, for any waiver of
compliance with any provisions of this Indenture or any defaults and
their consequences provided for in this Indenture;
(vii) alter or impair the right to convert any Security at the rate
and upon the terms provided in Article 12;
(viii) waive a default in the payment of Principal of or interest on
any Security of such Holder (except pursuant to a rescission of
acceleration pursuant to Section 4.01);
(ix) adversely affect the rights of such Holder under any mandatory
redemption or repurchase provision or any right of redemption or
repurchase at the option of such Holder;
(x) modify any of the provisions of this Section 7.02, except to
increase any such percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of
the Holder of each outstanding Security affected thereby; or
(xi) change or waive any provision that, pursuant to a board
resolution or indenture supplemental hereto establishing the terms of
one or more series of Securities, is prohibited to be so changed or
waived.
Upon the written request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.01, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
43
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
Neither the Issuer nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or agreed to be paid to all Holders of the Securities that consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement.
SECTION 7.03 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 7.04 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 7 complies with the applicable provisions of
this Indenture.
SECTION 7.05 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such
44
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person (other than
a consolidation with or merger with or into or a sale, conveyance, transfer,
lease or other disposition to a Wholly-Owned Subsidiary with a positive net
worth; provided that, in connection with any such merger of the Issuer with a
Wholly-Owned Subsidiary, no consideration (other than common stock) in the
surviving person or the Issuer shall be issued or distributed to the
stockholders of the Issuer), unless (i) either (x) the Issuer shall be the
continuing corporation, or the successor corporation or (y) the Person formed by
such consolidation or into which the Issuer is merged or that acquires by sale
or conveyance substantially all the assets of the Issuer (if other than the
Issuer) shall be a corporation or limited liability company organized under the
laws of the United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, (ii)
immediately after giving effect to such transaction, no default or Event of
Default shall have occurred and be continuing and (iii) the Issuer delivers to
the Trustee an Officers' Certificate and Opinion of Counsel, in each case
stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Section 8.01 and that all conditions precedent
provided for herein relating to such transaction have been complied with;
provided, however, that the foregoing limitations shall not apply if, in the
good faith determination of the Board of Directors, whose determination shall be
evidenced by a board resolution certified to the Trustee, the principal purpose
of such transaction is to change the state of incorporation of the Issuer; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
SECTION 8.02 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
45
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01 Defeasance Within One Year of Payment. Except as otherwise
provided in this Section 9.01, the Issuer may terminate its obligations under
the Securities of any series and this Indenture with respect to Securities of
such series if:
(i) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have been replaced or Securities of such series that
are paid pursuant to Section 3.01 or Securities of such series for whose
payment money or securities have theretofore been held in trust and
thereafter repaid to the Issuer, as provided in Section 9.05) have been
delivered to the Trustee for cancellation and the Issuer has paid all
sums payable by it hereunder; or
46
(ii) (A) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption, (B) the Issuer irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, to pay Principal
of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (C) the Issuer delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the satisfaction
and discharge of this Indenture with respect to the Securities of such
series have been complied with.
With respect to the foregoing clause (i), only the Issuer's obligations
under Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (ii), only the Issuer's
obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09 and 9.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Issuer's obligations in
Sections 5.06 and 9.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee shall acknowledge in
writing the discharge of the Issuer's obligations under the Securities of such
series and this Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
SECTION 9.02 Defeasance. Except as provided below, the Issuer will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Issuer, shall execute instruments in form and
substance satisfactory to the Issuer and the Trustee acknowledging the same);
provided that the following conditions shall have been satisfied:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds specifically pledged as security for, and dedicated
solely to, Holders of the Securities of such series, for payment of the
Principal of and interest on the Securities of such series, money or
U.S. Government
47
Obligations or a combination thereof sufficient (unless such funds
consist solely of money, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
to pay and discharge the Principal of and accrued interest on the
outstanding Securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the
Trustee), as the case may be;
(ii) such deposit will 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 Issuer is a party or by which it is
bound;
(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer shall have delivered to the Trustee (1) either (x) a
ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes
as a result of the Issuer's exercise of its option under this Section
9.02 and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (y) an Opinion of
Counsel to the same effect as the ruling described in clause (x) above
and based upon a change in law and (2) an Opinion of Counsel to the
effect that the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the
UCC; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the defeasance contemplated by
this Section 9.02 of the Securities of such series have been complied
with.
The Issuer's obligations in Sections 2.03 through 2.11, 3.02, 5.06, 5.09
and 9.05 with respect to the Securities of such series shall survive until such
Securities are no longer outstanding. Thereafter, only the Issuer's obligations
in Sections 5.06 and 9.05 shall survive.
48
SECTION 9.03 Covenant Defeasance. The Issuer may omit to comply with any
term, provision or condition set forth in Section 3.04 (or any other specific
covenant relating to the Securities of any series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03 which may by its
terms be defeased pursuant to this Section 9.03), and such omission shall be
deemed not to be an Event of Default under clause (c) of Section 4.01, with
respect to the outstanding Securities of such series if:
(i) the Issuer has irrevocably deposited in trust with the Trustee
as trust funds solely for the benefit of the Holders of the Securities
of such series, for payment of the Principal of and interest, if any, on
the Securities of such series, money or U.S. Government Obligations or a
combination thereof in an amount sufficient (unless such funds consist
solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee,
to pay and discharge the Principal of and interest on the outstanding
Securities of such series to maturity or earlier redemption (irrevocably
provided for under arrangements satisfactory to the Trustee), as the
case may be;
(ii) such deposit will 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 Issuer is a party or by which it is
bound;
(iii) no default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(iv) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Holders of the Securities of such series have
a valid security interest in the trust funds subject to no prior liens
under the UCC and (B) such Holders will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred; and
(v) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the covenant defeasance
49
contemplated by this Section 9.03 of the Securities of such series have
been complied with.
SECTION 9.04 Application of Trust Money. Subject to Section 9.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 9.01, 9.02 or 9.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law. The Issuer shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.01, 9.02 or 9.03, as the case may be, or the principal and interest received
in respect thereof, other than any such tax, fee or other charge that by law is
for the account of the Holders.
SECTION 9.05 Repayment to Issuer. Subject to Sections 5.06, 9.01, 9.02
and 9.03, the Trustee and the Paying Agent shall promptly pay to the Issuer upon
request set forth in an Officers' Certificate any money held by them at any time
and not required to make payments hereunder and thereupon shall be relieved from
all liability with respect to such money. Subject to applicable escheat or
abandoned property laws, the Trustee and the Paying Agent shall pay to the
Issuer upon written request any money held by them and required to make payments
hereunder under this Indenture that remains unclaimed for two years; provided
that the Trustee or such Paying Agent before being required to make any payment
may cause to be published at the expense of the Issuer once in an Authorized
Newspaper or mail to each Holder entitled to such money at such Holder's address
(as set forth in the register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date of
such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Issuer. After payment to the Issuer, Holders entitled to
such money must look to the Issuer for payment as unsecured general creditors
unless an abandoned property law designates another Person, and all liability of
the Trustee and such Paying Agent with respect to such money shall cease.
50
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer, director or employee, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the holders
thereof and as part of the consideration for the issue of the Securities.
SECTION 10.02 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 10.03 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 10.04 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to Comcast Corporation at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000-0000, Attention: Treasurer. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and
51
mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.05 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (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 such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or
52
representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel 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 Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same 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.
SECTION 10.06 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal 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 the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 10.07 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.08 New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of such State,
except as may otherwise be required by mandatory provisions of law.
53
SECTION 10.09 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 11.02 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
The notice of redemption to each such Holder shall specify the CUSIP
numbers of such Securities to be redeemed, the principal amount of each Security
of such series held by such Holder to be redeemed, the date fixed for
redemption, the redemption price, the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date
54
fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
written request, by the Trustee in the name and at the expense of the Issuer.
By 10:00 a.m. (New York City time) on the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is
acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.03) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
In the case of the redemption of all of the Securities of a series
outstanding, the Issuer shall notify the Trustee in writing of the redemption
date 45 days (unless a shorter period shall be satisfactory to the Trustee)
prior to the redemption date.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such manner as it shall deem
appropriate and fair, Securities of such Series to be redeemed in whole or in
part. Securities of a series may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series 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 11.03 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price,
55
together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and,
except as provided in Sections 5.05 and 9.04, such Securities shall cease from
and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.04 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.04 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 11.05 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an "optional sinking fund
56
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (a) specifying the portion of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that
57
the Issuer will make no optional sinking fund payment with respect to such
series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Issuer shall so request in writing) with respect
to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. If such amount shall be $50,000 or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 is available. The Trustee shall select, in the manner provided
in Section 11.02, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such series to absorb said cash, as nearly as
may be, and shall (if requested in writing by the Issuer) inform the Issuer of
the serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are identified in an Officers'
Certificate at least 60 days prior to the sinking fund payment date as being
beneficially owned by, and not pledged or hypothecated by, the Issuer or an
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Issuer or the Trustee, in
the name and at the expense of the Issuer (if the Issuer shall so request the
Trustee in writing) shall cause notice of redemption of the Securities of such
series to be given in the manner provided in Section 11.02 (and with the effect
provided in Section 11.03) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
58
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default if
the Trustee has received written notice thereof at least three Business Days
prior to any payment hereunder except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, if the Trustee has received written notice of such default or Event
of Default at least three Business Days prior to any payment hereunder, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article 4 and held for the payment of all
such Securities. In case such Event of Default shall have been waived as
provided in Section 4.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this section to the redemption of such Securities.
SECTION 11.06 Conversion Arrangement on Call For Redemption. In
connection with any redemption of Securities, the Issuer shall deposit the
amount due in connection with such redemption as required by Section 11.02 or it
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities and to make the deposit required of it by
Section 11.02 on its behalf by paying to the Trustee or the Paying Agent in
trust for the Securityholders, on or before 10:00 a.m. New York time on the
redemption date, an amount no less than the redemption price, together with
interest, if any, accrued to the redemption date of such Securities, in
immediately available funds. Notwithstanding anytime to the contrary contained
in this Article 11, the obligation of the Issuer to pay the redemption price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the holders thereof may, at the option of the
Issuer, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (notwithstanding anything to the contrary
contained in Article 12) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment of the
above amount aforesaid. The Trustee or the Paying Agent shall hold and pay to
the Securityholders whose Securities are selected for redemption
59
any such amount paid to it in the same manner as it would moneys deposited with
it by the Issuer for the redemption of Securities. Without the Trustee's and the
Paying Agent's prior written consent, no arrangement between the Issuer and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties, responsibilities or obligations of
the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify
the Trustee from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Issuer and such purchasers, including
the costs and expenses incurred by the Trustee and the Paying Agent in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01 Applicability of Article. Securities of any series which
are convertible into Capital Stock at the option of the Securityholder shall be
convertible in accordance with their terms and (unless otherwise specified as
contemplated by Section 2.03 for Securities of any series) in accordance with
this Article. Each reference in this Article 12 to "a Security" or "the
Securities" refers to the Securities of the particular series that is
convertible into Capital Stock. Each reference in this Article to "Capital
Stock" into which Securities of any series are convertible refers to the class
of Capital Stock into which the Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 2.03). If
more than one series of Securities with conversion privileges are outstanding at
any time, the provisions of this Article 12 shall be applied separately to each
such series.
SECTION 12.02 Right of Securityholders to Convert Securities. Subject to
and upon compliance with the terms of the Securities and the provisions of
Section 11.06 and this Article 12, at the option of the holder thereof, any
Security of any series of any authorized denomination, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of $1,000,
may, at any time during the period specified in the Securities of such series,
or in case such Security or portion thereof shall have been called for
redemption, then in respect of such Security or portion thereof until and
including, but not after (unless the Issuer shall default in payment due upon
the redemption thereof) the close of business on the Business Day prior to the
date fixed for redemption except that in the case of redemption at the option of
the Securityholder, if specified in the terms
60
of such Securities, such right shall terminate upon receipt of written notice of
the exercise of such option, be converted into duly authorized, validly issued,
fully paid and nonassessable shares of the class of Class A Common Stock and
Class A Special Common Stock, or combination thereof, as specified in such
Security, at the conversion rate for each $1,000 principal amount of Securities
(such initial conversion rate reflecting an initial conversion price specified
in such Security) in effect on the conversion date, or, in case an adjustment in
the conversion rate has taken place pursuant to the provisions of Section 12.05,
then at the applicable conversion rate as so adjusted, upon surrender of the
Security or Securities, the principal amount of which is so to be converted, to
the Issuer at any time during usual business hours at the office or agency to be
maintained by it in accordance with the provisions of Section 3.02, accompanied
by a written notice of election to convert as provided in Section 12.03 and, if
so required by the Issuer and the Trustee, by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the registered holder or his attorney duly authorized in writing.
All Securities surrendered for conversion shall, if surrendered to the Issuer or
any conversion agent, be delivered to the Trustee for cancellation and cancelled
by it, or shall, if surrendered to the Trustee, be cancelled by it, as provided
in Section 2.10.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified in the Securities of such series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 12.05 or such other or different terms, if any, as may be
specified by Section 2.03 for Securities of such series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of it.
SECTION 12.03 Issuance of Shares of Capital Stock on Conversion. As
promptly as practicable after the surrender, as herein provided, of any Security
or Securities for conversion, the Issuer shall deliver or cause to be delivered
at its said office or agency to or upon the written order of the holder of the
Security or Securities so surrendered a certificate or certificates representing
the number of duly authorized, validly issued, fully paid and nonassessable
shares of Capital Stock into which such Security or Securities may be converted
in accordance with the terms thereof and the provisions of this Article 12.
Prior to delivery of such certificate or certificates, the Issuer shall require
a written notice at its said office or agency from the holder of the Security or
Securities so surrendered stating that the holder irrevocably elects to convert
such Security or Securities, or, if less than the entire principal amount
thereof is to be converted, stating the portion thereof to be converted. Such
notice shall also state the name or names (with address and social security or
other taxpayer identification number) in which said certificate or certificates
are to be issued. Such conversion shall be deemed to have been made at the time
that such Security or Securities shall have been surrendered for
61
conversion and such notice shall have been received by the Issuer or the
Trustee, the rights of the holder of such Security or Securities as a
Securityholder shall cease at such time, the person or persons entitled to
receive the shares of Capital Stock upon conversion of such Security or
Securities shall be treated for all purposes as having become the record holder
or holders of such shares of Capital Stock at such time and such conversion
shall be at the conversion rate in effect at such time. In the case of any
Security of any series which is converted in part only, upon such conversion,
the Issuer shall execute and the Trustee shall authenticate and deliver to the
holder thereof, as requested by such holder, a new Security or Securities of
such series of authorized denominations in aggregate principal amount equal to
the unconverted portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Issuer will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 12.04 No Payment or Adjustment for Interest or Dividends. Unless
otherwise specified as contemplated by Section 2.03 for Securities of such
series, Securities surrendered for conversion during the period from the close
of business on any regular record date (or special record date for payment of
defaulted interest) next preceding any interest payment date to the opening of
business on such interest payment date (except Securities called for redemption
on a redemption date within such period) when surrendered for conversion must be
accompanied by payment of an amount equal to the interest thereon which the
registered holder is to receive on such interest payment date. Payment of
interest shall be made, as of such interest payment date or such date, as the
case may be, to the holder of record of the Securities as of such regular, or
special record date, as applicable. Except where Securities surrendered for
conversion must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Issuer on any interest payment date
subsequent to the date of conversion. No other payment or adjustment for
interest or dividends is to be made upon conversion. Notwithstanding the
foregoing, upon conversion of any Security with original issue discount, the
fixed number of shares of Capital Stock into which such Security is convertible
delivered by the Issuer to the holder thereof shall be applied, first, to pay
the accrued original issue discount attributable to the period from the date of
issuance to the date of conversion of
62
such Security, and, second, to pay the balance of the principal amount of such
Security.
SECTION 12.05 Adjustment of Conversion Rate. Unless otherwise specified
as contemplated by Section 2.03 for Securities of such series, the conversion
rate for Securities in effect at any time shall be subject to adjustment as
follows:
(a) In case the Issuer shall (i) declare a dividend or make a
distribution on the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares, of the class of Capital Stock into which Securities of such
series are convertible (including any such reclassification in connection with a
consolidation or merger in which the Issuer is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Issuer shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock, so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (e) below) on the date on
which such issuance was declared or otherwise announced by the Issuer (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such
63
principal amount of Securities was convertible immediately prior to such record
date by a fraction, of which the numerator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
additional shares of such class of Capital Stock offered for subscription or
purchase (or in the case of a right or warrant to purchase securities
convertible into such class of Capital Stock, the aggregate number of additional
shares of such class of Capital Stock into which the convertible securities so
offered are initially convertible), and of which the denominator shall be the
number of shares of such class of Capital Stock outstanding on the Determination
Date plus the number of shares of such class of Capital Stock obtained by
dividing the aggregate offering price of the total number of shares so offered
(or, in the case of a right or warrant to purchase securities convertible into
such class of Capital Stock, the aggregate initial conversion price of the
convertible securities so offered, after adding thereto the aggregate exercise
price of such rights or warrants computed on the basis of the maximum number of
shares of such class of Capital Stock issuable upon conversion of such
convertible securities) by such current market price. Shares of such class of
Capital Stock of the Issuer owned by or held for the account of the Issuer shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and
to the extent that shares of such class of Capital Stock are not delivered (or
securities convertible into shares of such class of Capital Stock are not
delivered) after the expiration of such rights or warrants (or, in the case of
rights or warrants to purchase securities convertible into such class of Capital
Stock once exercised, the expiration of the conversion right of such securities)
the conversion rate shall be readjusted to the conversion rate which would then
be in effect had the adjustments made upon the issuance of such rights or
warrants (or securities convertible into shares) been made upon the basis of
delivery of only the number of shares actually delivered. In the event that such
rights or warrants are not so issued, the conversion rate shall again be
adjusted to be the conversion rate which would then be in effect if such record
date had not been fixed.
(c) In case the Issuer shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Securities
of such series are convertible (including any such distribution made in
connection with a consolidation or merger in which the Issuer is the continuing
corporation) of evidences of its indebtedness or assets (excluding any cash
dividends paid from retained earnings and dividends payable in Capital Stock for
which adjustment is made pursuant to subsection (a) above or (d) below) or
subscription rights or warrants (excluding subscription rights or warrants to
purchase the class of Capital Stock into which Securities of such series are
convertible), the number of shares of such class of Capital Stock into which
each $1,000 principal amount of Securities of such series shall be convertible
after such record date shall be determined by multiplying the number of shares
of such class of Capital Stock
64
into which such principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair
market value of the assets of the Issuer, after deducting therefrom all
liabilities of the Issuer and all preferences (including accrued but unpaid
dividends) in respect of classes of Capital Stock having a preference with
respect to the assets of the Issuer over such class of Capital Stock (all as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a certificate signed by any vice chairmen of the board, vice
president or assistant vice president and treasurer of the Issuer, filed with
the Trustee and each conversion agent) on such record date, and of which the
denominator shall be such fair market value after deducting therefrom such
liabilities and preferences, less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive, and described in a
statement filed with the Trustee and each conversion agent) of the assets or
evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
(d) In case the Issuer shall, by dividend or otherwise, distribute to
all holders of its Capital Stock cash (excluding (x) any quarterly cash dividend
on the Capital Stock to the extent the aggregate cash dividend per share of
Capital Stock in any fiscal quarter does not exceed the greater of (A) the
amount per share of Capital Stock of the next preceding quarterly cash dividend
on the Capital Stock to the extent such preceding quarterly dividend did not
require any adjustment of the conversion rate pursuant to this Section 12.05(d)
(as adjusted to reflect subdivisions or combinations of the Capital Stock), and
(B) 3.75% of the current market price of the Capital Stock (determined as
provided in Section 12.05(e)) on the date of declaration of such dividend and
(y) any dividend or distribution in connection with the liquidation, dissolution
or winding up of the Issuer, whether voluntary or involuntary), then, in such
case, unless the Issuer elects to reserve such cash for distribution to the
holders of the Securities upon the conversion of the Securities so that any such
holder converting Securities will receive upon such conversion, in addition to
the shares of Capital Stock to which such holder is entitled, the amount of cash
which such holder would have received if such holder had, immediately prior to
the record date for such distribution of cash, converted its Securities into
Capital Stock, the conversion rate shall be adjusted so that the same shall
equal the rate determined by multiplying the conversion rate in effect
immediately prior to the record date by a fraction of which the denominator
shall be the current market price of the Capital Stock (determined as provided
in Section 12.05(e)) on the record date less the amount of cash so distributed
(and not excluded as provided above) applicable to one share of Capital Stock
and the
65
numerator shall be such current market price of the Capital Stock (determined as
provided in Section 12.05(e)), such adjusted to be effective immediately prior
to the opening of business on the day following the record date; provided,
however, that in the event the portion of the cash so distributed applicable to
one share of Capital Stock is equal to or greater than the current market price
of the Capital Stock (determined as provided in Section 12.05(e)) on the record
date, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Securityholder shall have the right to receive upon conversion the
amount of cash such holder would have received had such holder converted each
Security on the record date. If such dividend or distribution is not so paid or
made, the conversion rate shall again be adjusted to be the conversion rate
which would then be in effect if such dividend or distribution had not been
declared.
(e) For the purpose of any computation under subsections (b) and (d)
above and Section 12.06, the current market price per share of the Capital Stock
on any date as of which such price is to be computed shall mean the average of
the Closing Prices for the 30 consecutive Business Days commencing 45 Business
Days before such date.
(f) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article 12 (other than this subsection (e)) not later than such time as may be
required in order to preserve the tax-free nature of a distribution for United
States income tax purposes to the holders of Securities or the class of Capital
Stock into which such Securities are convertible. All calculations under this
Article 12 shall be made to the nearest cent or to the nearest one-thousandth of
a share, as the case may be. Anything in this Section 12.05 to the contrary
notwithstanding, the Issuer shall be entitled to make such adjustments in the
conversion rate, in addition to those required by this Section 12.05, as it in
its discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights to purchase stock or securities,
or distribution of securities convertible into or exchangeable for stock
hereafter made by the Issuer to its shareholders shall not be taxable for United
States income tax purposes.
(g) Whenever the conversion rate is adjusted, as herein provided, the
Issuer shall promptly file with the Trustee and with the office or agency
maintained by the Issuer for the conversion of Securities of such series
pursuant to Section 3.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the
66
regular accountants employed by the Issuer) setting forth the conversion rate
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and a computation thereof. Such certificate shall be conclusive
evidence of the correctness of such adjustment. Neither the Trustee nor any
conversion agent shall be under any duty or responsibility with respect to any
such certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Securityholder of such series
desiring to inspect the same. The Issuer shall promptly cause a notice setting
forth the adjusted conversion rate to be mailed to the holders of Securities of
such series, as their names and addresses appear upon the register of the
Issuer.
(h) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or in
lieu of shares of the class of Capital Stock into which such Securities are
convertible or as a result of an adjustment made pursuant to subsection (a)
above, the holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Issuer other than
shares of the class of Capital Stock into which the Issuer of such series are
convertible, thereafter the number of such other shares so receivable upon
conversion of any Security shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the class of Capital Stock into which the Securities of such series
are convertible contained in subsections (a) to (f), inclusive, above, and the
provisions of this Article 12 with respect to the class of Capital Stock into
which the Securities of such series are convertible shall apply on like terms to
any such other shares.
(i) The conversion rate with respect to any Securities with original
issue discount, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Security for accrued
original issue discount.
(j) In the event that the Securities of any series are convertible into
more than one class of Capital Stock, the provisions of this Section 12.05 shall
apply separately to events affecting each such class.
SECTION 12.06 No Fractional Shares to Be Issued. No fractional shares of
Capital Stock shall be issued upon conversions of Securities. If more than one
Security of any series shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Capital Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified
67
portions thereof), the Issuer shall pay a cash adjustment in respect of such
fraction of a share in an amount equal to the same fractional interest of the
current market price (as defined in Section 12.05) per share of Capital Stock on
the Business Day next preceding the day of conversion.
SECTION 12.07 Preservation of Conversion Rights Upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Issuer with, or
merger of the Issuer into, any other corporation (other than a consolidation or
merger in which the Issuer is the continuing corporation), or in the case of any
sale or transfer of all or substantially all of the assets of the Issuer, the
corporation formed by such consolidation or the corporation into which the
Issuer shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Articles 7 and 8 as they
relate to supplemental indentures, providing that the holder of each Security
then Outstanding of a series which was convertible into Capital Stock shall have
the right thereafter to convert such Security into the kind and amount of shares
of stock and other securities and property, including cash, receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Capital Stock of the Issuer into which such Securities might have been converted
immediately prior to such consolidation, merger, sale or transfer. Such
supplemental indenture shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect and shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article 12. Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provision contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property receivable by Securityholders upon the
conversion of their Securities after any such consolidation, merger, sale or
transfer, or to any adjustment to be made with respect there to and, subject to
the provisions of Article 5, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect thereto. If in the case of any such
consolidation, merger, sale or transfer, the stock or other securities and
property receivable by a holder of the Securities includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the holders of the Securities as the Board of Directors shall
reasonably consider necessary. The above provisions of this Section 12.07 shall
similarly apply to successive consolidations, mergers, sales or transfers.
SECTION 12.08 Notice to Security Holders of a Series Prior to Taking
Certain Types of Action. With respect to the Securities of any series, in case:
68
(a) the Issuer shall authorize the issuance to all holders of the class
of Capital Stock into which Securities of such series are convertible of rights
or warrants to subscribe for or purchase shares of its Capital Stock or of any
other right;
(b) the Issuer shall authorize the distribution to all holders of the
class of Capital Stock into which Securities of such series are convertible of
evidences of its indebtedness or assets (except for the exclusions with respect
to certain dividends set forth in Section 12.05(c));
(c) of any subdivision, combination or reclassification of the class of
Capital Stock into which Securities of such series are convertible or of any
consolidation or merger to which the Issuer is a party and for which approval by
the shareholders of the Issuer is required, or of the sale or transfer of all or
substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 3.02, and shall cause to be mailed to the holders of
Securities of such series, at their last addresses as they shall appear upon the
register of the Issuer, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date as of which the holders of
such class of Capital Stock to be entitled to receive any such rights, warrants
or distribution are to be determined, or (ii) the date on which any such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action is expected to
become effective, and the date as of which it is expected that holders of record
of such class of Capital Stock shall be entitled to exchange their Capital Stock
of such class for securities or other property, if any, deliverable upon such
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action. The failure to
give the notice required by this Section 12.08 or any defect therein shall not
affect the legality or validity of any distribution, right, warrant,
subdivision, combination, reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation, winding up or other action, or the vote upon
any of the foregoing. Such notice shall also be published by and at the expense
of the Issuer not later than the aforesaid filing date at least once in an
Authorized Newspaper.
SECTION 12.09 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Issuer covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights,
69
solely for the purpose of issue upon conversion of Securities of any series as
herein provided, such number of shares of Capital Stock of such class as shall
then be issuable upon the conversion of all Outstanding Securities of such
series. The Issuer covenants that an shares of Capital Stock which shall be so
issuable shall, when issued or delivered, be duly and validly issued shares of
the class of authorized Capital Stock into which Securities of such series are
convertible, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital stock accounts of the Issuer will be duly credited.
SECTION 12.10 Compliance with Governmental Requirements. The Issuer
covenants that if any shares of Capital Stock required to be reserved for
purposes of conversion of Securities hereunder require registration or listing
with or approval of any governmental authority under any Federal or State law,
pursuant to the Securities Act of 1933, as amended, or the Securities Exchange
Act of 1934, as amended, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of such
Capital Stock, before such shares may be issued upon conversion, the Issuer will
use its best efforts to cause such shares to be duly registered, listed or
approved, as the case may be.
SECTION 12.11 Payment of Taxes upon Certificates for Shares Issued Upon
Conversion. The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting
Securityholders for any tax (including, without limitation, all documentary and
stamp taxes) in respect of the issuance and delivery of such certificates, and
such certificates shall be issued in the respective names of, or in such names
as may be directed by, the holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the holder of the Security
converted, and the Issuer shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Issuer the amount of such tax or shall have
established to the satisfaction of the Issuer that such tax has been paid.
SECTION 12.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be under any duty or
responsibility to any Securityholder to determine whether any facts exist which
may require any adjustment of the conversion rate or conversion price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent
70
shall be accountable with respect to the registration under securities laws,
listing, validity or value (or the kind or amount) of any shares of Capital
Stock, or of any other securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and neither the Trustee nor
any conversion agent makes any representation with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Issuer to make any cash payment or to issue, transfer or deliver any shares of
stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion; and the Trustee, subject to the
provisions of Article 5, and any conversion agent shall not be responsible for
any failure of the Issuer to comply with any of the covenants of the Issuer
contained in this Article 12.
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the first date written above.
COMCAST CORPORATION
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
-----------------------------------
BANK OF MONTREAL TRUST
COMPANY
By:
-----------------------------------
[CORPORATE SEAL]
Attest:
By:
-----------------------------------
