Exhibit 4
===============================================================================
TIME WARNER TELECOM INC.,
as Issuer
and
The Chase Manhattan Bank
as Trustee
INDENTURE
Dated as of _________, ____
-----------------
===============================================================================
Table Showing Reflection in Indenture of Certain Provisions
of Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990
--------------------
Reflected in Indenture
----------------------
TIA Section
ss.310(a)(1)................................................... 6.09
(a)(2)................................................... 6.09
(a)(3)................................................... Not Applicable
(a)(4)................................................... Not Applicable
(a)(5)................................................... 6.09
(b)...................................................... 6.08
ss.311(a)...................................................... 6.13(a)
(b)...................................................... 6.13(b)
(b)(2)................................................... 7.03(a)
......................................................... 7.03(b)
ss.312(a)...................................................... 7.01
......................................................... 7.02(a)
(b)...................................................... 7.03(b)
(c)...................................................... 7.02(c)
ss.313(a)...................................................... 7.03(a)
(b)...................................................... 7.03(b)
(c)...................................................... 7.03(a)
......................................................... 7.03(b)
(d)...................................................... 7.03(c)
ss.314(a)(1)................................................... 7.04
(a)(2)................................................... 7.04
(a)(3)................................................... 7.04
(a)(4)................................................... 10.04
(b)...................................................... Not Applicable
(c)(1)................................................... 1.02
(c)(2)................................................... 1.02
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)...................................................... 1.02
ss.315(a)...................................................... 6.01(a)
......................................................... 6.01(c)
(b)...................................................... 6.02
......................................................... 7.03(a)
(c)...................................................... 6.01(b)
(d)...................................................... 6.01
(d)(1)................................................... 6.01(a)
(d)(2)................................................... 6.01(c)(2)
(d)(3)................................................... 6.01(c)(3)
(e)...................................................... 5.14
ss.316(a)...................................................... 1.01
(a)(1)(A)................................................ 5.02
......................................................... 5.12
(a)(1)(B)................................................ 5.13
(a)(2)................................................... Not Applicable
(b)...................................................... 5.08
(c)...................................................... 1.04(d)
ss.317(a)(1)..................... ............................. 5.03
(a)(2)...................... ............................ 5.04
(b).......................... ........................... 10.03
ss.318(a)... .................................................. 1.07
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I
Definitions and Other
Provisions of General Application
---------------------------------
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Compliance Certificates and Opinions..........................36
SECTION 1.03. Form of Documents Delivered to Trustee........................37
SECTION 1.04. Acts of Securityholders.......................................38
SECTION 1.05. Notices, etc., to Trustee and Company.........................40
SECTION 1.06. Notices to Securityholders; Waiver............................40
SECTION 1.07. Conflict with Trust Indenture Act. ...........................41
SECTION 1.08. Effect of Headings and Table of Contents... ..................41
SECTION 1.09. Successors and Assigns........................................41
SECTION 1.10. Separability clause...........................................41
SECTION 1.11. Benefits of Indenture.........................................42
SECTION 1.12. Governing Law.................................................42
SECTION 1.13. Counterparts..................................................42
SECTION 1.14. Judgment Currency.............................................42
SECTION 1.15. Payment Date Other Than a Business Day........................43
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally...............................................43
SECTION 2.02. Forms of Securities. ........................................43
SECTION 2.03. Form of Trustee's Certificate of
Authentication..............................................44
SECTION 2.04. Securities Issuable in the Form
of a Global Security........................................44
ARTICLE III
The Securities
--------------
SECTION 3.01. General Title; General Limitations;
Issuable in Series; Terms of
Particular Series...........................................47
SECTION 3.02. Denominations.................................................51
SECTION 3.03. Execution, Authentication and Delivery
and Dating..................................................51
SECTION 3.04. Temporary Securities..........................................53
SECTION 3.05. Registration, Transfer and Exchange...........................54
SECTION 3.06. Mutilated, Destroyed, Lost and
Wrongfully Taken Securities.................................55
SECTION 3.07. Payment of Interest; Interest Rights
i
Preserved...................................................56
SECTION 3.08. Persons Deemed Owners.........................................58
SECTION 3.09. Cancelation...................................................58
SECTION 3.10. Computation of Interest.......................................58
SECTION 3.11. Delayed Issuance of Securities................................58
ARTICLE IV
Discharge Of Indenture
----------------------
SECTION 4.01. Termination of Company's Obligations..........................59
SECTION 4.02. Defeasance and Discharge of Indenture.........................61
SECTION 4.03. Defeasance of Certain Obligations.............................63
SECTION 4.04. Application of Trust Money....................................65
SECTION 4.05. Repayment to Company..........................................65
SECTION 4.06. Reinstatement.................................................66
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default.............................................66
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment...............................................68
SECTION 5.03. Other Remedies................................................70
SECTION 5.04. Collection of Indebtedness and Suits
for Enforcement by Trustee..................................70
SECTION 5.05. Trustee May File Proofs of Claim..............................71
SECTION 5.06. Trustee May Enforce Claims Without
Possession of Securities....................................72
SECTION 5.07. Application of Money Collected................................72
SECTION 5.08. Limitation on Suits...........................................72
SECTION 5.09. Unconditional Right of Securityholders
To Receive Principal, Premium and
Interest....................................................73
SECTION 5.10. Restoration of Rights and Remedies............................74
SECTION 5.11. Rights and Remedies Cumulative................................74
SECTION 5.12. Delay or Omission Not Waiver..................................74
SECTION 5.13. Control by Securityholders....................................74
SECTION 5.14. Waiver of Past Defaults.......................................75
SECTION 5.15. Undertaking for Costs.........................................75
SECTION 5.16. Waiver of Stay or Extension Laws..............................76
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities...........................76
ii
SECTION 6.02. Notice of Defaults............................................77
SECTION 6.03. Certain Rights of Trustee.....................................78
SECTION 6.04. Not Responsible for Recitals or Issuance
of Securities...............................................80
SECTION 6.05. May Hold Securities...........................................80
SECTION 6.06. Money Held in Trust...........................................80
SECTION 6.07. Compensation and Reimbursement................................80
SECTION 6.08. Disqualification; Conflicting Interests.......................81
SECTION 6.09. Corporate Trustee Required; Eligibility.......................81
SECTION 6.10. Resignation and Removal.......................................82
SECTION 6.11. Acceptance of Appointment by Successor........................84
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business......................................85
SECTION 6.13. Preferential Collection of Claims
Against Company.............................................85
SECTION 6.14. Appointment of Authenticating Agent...........................85
ARTICLE VII
Securityholders' Lists and Reports by
Trustee and Company
-------------------
SECTION 7.01. Company To Furnish Trustee Names and
Addresses of Securityholders................................87
SECTION 7.02. Preservation of Information; Communications
to Securityholders. .......................................88
SECTION 7.03. Reports by Trustee............................................89
SECTION 7.04. Reports by Company............................................90
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
---------------------------------------------
SECTION 8.01. Consolidation, Merger, Conveyance or
Transfer on Certain Terms...................................90
SECTION 8.02. Successor Substituted.........................................92
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of
Securityholders.............................................92
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.............................................93
SECTION 9.03. Execution of Supplemental Indentures..........................94
SECTION 9.04. Effect of Supplemental Indentures.............................95
SECTION 9.05. Conformity with Trust Indenture Act...........................95
iii
SECTION 9.06. Reference in Securities to Supplemental
Indentures...................................................95
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and
Interest....................................................95
SECTION 10.02. Maintenance of Office or Agency...............................96
SECTION 10.03. Limitation on Indebtedness....................................96
SECTION 10.04. Limitation on Restricted Payments............................100
SECTION 10.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted
Subsidiaries...............................................104
SECTION 10.06. Limitation on the Issuance and Sale of
Capital Stock of Restricted
Subsidiaries...............................................106
SECTION 10.07. Limitation on Issuances of Guarantees
by Restricted Subsidiaries.................................106
SECTION 10.08. Limitation on Transactions with
Stockholders and Affiliates................................107
SECTION 10.09. Limitation on Liens..........................................108
SECTION 10.10. Limitation on Sale-Leaseback
Transactions...............................................109
SECTION 10.11. Limitation on Asset Sales....................................109
SECTION 10.12. Repurchase of Securities upon a Change
of Control.................................................111
SECTION 10.13. Existence....................................................111
SECTION 10.14. Payment of Taxes and Other Claims............................112
SECTION 10.15. Maintenance of Properties and
Insurance..................................................112
SECTION 10.16. Notice of Defaults...........................................113
SECTION 10.17. Compliance Certificates......................................113
SECTION 10.18. Commission Reports and Reports to
Holders....................................................113
SECTION 10.19. Waiver of Stay, Extension or Usury
Laws.......................................................113
SECTION 10.20. Money for Security Payments To Be Held
in Trust...................................................114
SECTION 10.22. Statement as to Compliance...................................115
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article.....................................116
SECTION 11.02. Election To Redeem; Notice to Trustee........................116
iv
SECTION 11.03. Selection by Trustee of Securities To Be
Redeemed...................................................117
SECTION 11.04. Notice of Redemption.........................................118
SECTION 11.05. Deposit of Redemption Price..................................119
SECTION 11.06. Securities Payable on Redemption Date........................119
SECTION 11.07. Securities Redeemed in Part..................................120
SECTION 11.08. Provisions with Respect to Any Sinking
Funds......................................................120
ARTICLE XII
Conversion
----------
SECTION 12.01. Conversion Privilege. ......................................122
SECTION 12.02. Conversion Procedure; Conversion Price;
Fractional Shares..........................................122
SECTION 12.03. Adjustment of Conversion Price for Common
Stock or Marketable Securities.............................124
SECTION 12.04. Consolidation or Merger of the
Company....................................................128
SECTION 12.05. Notice of Adjustment.........................................129
SECTION 12.06. Notice in Certain Events.....................................130
SECTION 12.07. Company To Reserve Stock or Other
Marketable Securities; Registration;
Listing. .................................................130
SECTION 12.08. Taxes on Conversion..........................................131
SECTION 12.09. Conversion After Record Date.................................132
SECTION 12.10. Corporate Action Regarding Par Value
of Common Stock............................................132
SECTION 12.11. Company Determination Final..................................132
SECTION 12.12. Trustee's Disclaimer.........................................132
ARTICLE XIII
Convertible Securities
----------------------
SECTION 13.01. Applicability of Certain
Provisions to Convertible
Securities.................................................132
v
THIS INDENTURE, dated as of _________, ____,
between TIME WARNER TELECOM INC., a Delaware
corporation, as issuer (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
trustee (the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its debentures, notes, bonds or other
evidences of indebtedness, to be issued in one or more fully registered
series.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued
and delivered, and in consideration of the premises and the purchase of
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof, as the case may be:
ARTICLE I
Definitions and Other Provisions
of General Application
----------------------
SECTION 1.01. Definitions. For all purposes of this Indenture and of any
indenture supplemental hereto, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by
2
reference therein, have the meanings assigned to them herein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles and any
accounting rules or interpretations promulgated by the Commission as are
generally accepted in the United States of America at the date of this
Indenture; and
(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument as originally
executed. 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.
Certain terms, used principally in Article VI, are defined in that
Article.
"Act", when used with respect to any Securityholder, has the meaning
specified in Section 1.04.
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or assumed in connection with
an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition; provided, however, that Indebtedness of such Person
which is redeemed, defeased, retired or otherwise repaid at the time of or
immediately upon consummation of the transactions by which such Person becomes
a Restricted Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"Adjusted Consolidated Net Income" means, for any period, aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such
period determined in conformity with GAAP; provided, however, that the
following items shall be excluded in computing Adjusted Consolidated Net
Income (without duplication):
(1) the net income (or loss) of any Person that is not a Restricted
Subsidiary, except (A) with respect to net income, to the extent of the
amount of dividends or
3
other distributions actually paid to the Company or any of its Restricted
Subsidiaries by such Person during such period and (B) with respect to
net losses, to the extent of the amount of Investments made by the
Company or any Restricted Subsidiary in such Person during such period;
(2) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to Section 10.04(iv)(C) (and in such
case, except to the extent includable pursuant to clause (1) above), the
net income (or loss) of any Person accrued prior to the date it becomes a
Restricted Subsidiary or is merged into or consolidated with the Company
or any of its Restricted Subsidiaries or all or substantially all of the
property and assets of such Person are acquired by the Company or any of
its Restricted Subsidiaries;
(3) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary;
(4) any gains or losses (on an after-tax basis) attributable to
Asset Sales;
(5) except for purposes of calculating the amount of Restricted
Payments that may be made pursuant to Section 10.04(iv)(C), any amount
paid or accrued as dividends (other than dividends to the extent paid or
payable in shares of Capital Stock (other than the Company's Disqualified
Stock)) on its Preferred Stock or any Restricted Subsidiary owned by
Persons other than the Company's and any of its Restricted Subsidiaries;
(6) all extraordinary gains and extraordinary losses; and
(7) any compensation expense paid or payable solely with Capital
Stock (other than the Company's Disqualified Stock) or any options,
warrants or other rights to acquire Capital Stock (other than
Disqualified Stock).
"Adjusted Consolidated Net Tangible Assets" means the total amount of
assets of the Company and its Restricted
4
Subsidiaries (less applicable depreciation, amortization and other valuation
reserves), except to the extent resulting from write-ups of capital assets
(excluding write-ups in connection with accounting for acquisitions in
conformity with GAAP), after deducting therefrom:
(1) all the Company's current liabilities and those of its
Restricted Subsidiaries (excluding intercompany items); and
(2) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on the
Company's most recent quarterly or annual consolidated balance sheet and
those of the Company's Restricted Subsidiaries, prepared in conformity
with GAAP and filed with the SEC or provided to the Trustee pursuant to
Section 10.18.
"Adjusted Net Cash Proceeds" has the meaning provided in Section
10.11.
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Co-Registrar, Paying Agent or Authenticating
Agent.
"Asset Acquisition" means:
(1) an investment by the Company or any of its Restricted Subsidiaries in
any other Person pursuant to which such Person shall become a Restricted
Subsidiary or shall be merged into or consolidated with the Company or any of
its Restricted Subsidiaries; provided, however, that such Person's primary
business is related, ancillary or complementary to the Company's businesses
and those of its Restricted Subsidiaries on the date of such investment; or
(2) an acquisition by the Company or any of its Restricted Subsidiaries
of the property and assets of
5
any Person other than the Company or any of its Restricted Subsidiaries
that constitute substantially all of a division or line of business of
such Person; provided, however, that the property and assets acquired are
related, ancillary or complementary to the Company's businesses and those
of its Restricted Subsidiaries on the date of such acquisition.
"Asset Disposition" means the sale or other disposition by the Company or
any of its Restricted Subsidiaries (other than to the Company or another
Restricted Subsidiary) of:
(1) all or substantially all of the Capital Stock of any Restricted
Subsidiary; or
(2) all or substantially all of the assets that constitute a
division or line of business of the Company or any of its Restricted
Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition (including by
way of merger, consolidation or sale-leaseback transaction) in one transaction
or a series of related transactions by the Company or any of its Restricted
Subsidiaries to any Person other than the Company or any of its Restricted
Subsidiaries of:
(1) all or any of the Capital Stock of any Restricted Subsidiary;
(2) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted
Subsidiaries; or
(3) any other property and assets (other than the Capital Stock or
other Investment in an Unrestricted Subsidiary) of the Company or any of
its Restricted Subsidiaries outside the ordinary course of the Company's
business or that of such Restricted Subsidiary and, in each case, that is
not governed by the provisions of this Indenture applicable to mergers,
consolidations and sales of all or substantially all of the Company's
assets; provided, however, that "Asset Sale" shall not include:
(A) sales or other dispositions of inventory, receivables and
other current assets;
(B) sales, transfers or other dispositions of assets
constituting a Restricted Payment permitted to be made under Section
10.04;
6
(C) sales, transfers or other dispositions of assets with a
fair market value (as certified in an Officers' Certificate) not in
excess of $5 million in any transaction or series of related
transactions; or
(D) sales or other dispositions of assets for consideration at
least equal to the fair market value of the assets sold or disposed
of, to the extent that the consideration received would constitute
property, assets or securities of the kind described in Section
10.11(ii)(1)(B).
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 6.14.
"Average Life" means, at any date of determination with respect to any
Security, the quotient obtained by dividing (1) the sum of the products of (A)
the number of years from such date of determination to the dates of each
successive scheduled principal payment of such Security and (B) the amount of
such principal payment by (2) the sum of all such principal payments.
"Board of Directors" means (i) the board of directors of the Company,
(ii) any duly authorized committee of such board, (iii) any committee of
officers of the Company or (iv) any officer of the Company acting, in the case
of (iii) or (iv) pursuant to authority granted by the board of directors of
the Company or any committee or such board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means, with respect to any series of Securities, unless
otherwise specified in a Board Resolution and an Officers' Certificate with
respect to a particular series of Securities, each day which is not a
Saturday, Sunday or other day on which banking institutions in the pertinent
Place or Places of Payment or the city in which the Corporate Trust Office is
located are authorized or required by law or executive order to be closed.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or
7
non-voting) in equity of such Person, whether outstanding on the date of this
Indenture or issued thereafter, including, without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present
value of the rental obligations of such Person as lessee, in conformity with
GAAP, is required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means the discounted present value of the
rental obligations under a Capitalized Lease.
"Change of Control" means such time as:
(1) the Former Parent Companies as a group cease to have the ability
to elect a majority of the members of the Board of Directors (other than
the Company's chief executive officer and independent directors;
provided, however, that independent directors shall be included in
calculating whether the foregoing majority requirement is satisfied if
the directors nominated by the Former Parent Companies do not constitute
a majority of the committee that selects the Board of Directors' nominees
for independent directors) and a "person" or "group" (within the meaning
of Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the
Former Parent Companies) has become the ultimate "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 35% of the
total voting power of the Company's Voting Stock, on a fully diluted
basis and such ownership represents a greater percentage of the total
voting power of the Company's Voting Stock, on a fully diluted basis,
than is held by the Former Parent Companies as a group on such date; or
(2) individuals who on the date of this Indenture constitute the
Board of Directors (together with any new directors whose election by the
Board of Directors or whose nomination by the Board of Directors for
election by the Company's stockholders or members, as the case may be,
was approved by a vote of at least two-thirds of the members of the Board
of Directors then in office who either were members of the Board of
Directors on the date of this Indenture or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in
office.
8
"Change of Control Period" means, with respect to a Change of Control,
the period of 60 days commencing on the date of the earlier to occur of (1)
public notice of the occurrence of a Change of Control or of the Company's
intention to effect a Change of Control and (2) the Change of Control.
"Closing Price" of the Common Stock or other Marketable Security, as the
case may be, shall mean the last reported sale price of such stock or other
Marketable Security (regular way) as shown on the Composite Tape of the NYSE
(or, if such stock or other Marketable Security is not listed or admitted to
trading on the NYSE, on the principal national securities exchange on which
such stock or other Marketable Security is listed or admitted to trading), or,
in case no such sale takes place on such day, the average of the closing bid
and asked prices on the NYSE (or, if such stock or other Marketable Security
is not listed or admitted to trading on the NYSE, on the principal national
securities exchange on which such stock or other Marketable Security is listed
or admitted to trading), or, if it is not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ), or if such stock or other Marketable Security is
not so reported, the average of the closing bid and asked prices as furnished
by any member of the National Association of Securities Dealers, Inc.,
selected from time to time by the Company for that purpose.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means, with respect to any Person, such Person's equity
other than Preferred Stock of such Person, whether outstanding on the date of
this Indenture or issued thereafter including, without limitation, all series
and classes of such Common Stock, including any and all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) thereof.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
9
"Company Request", "Company Order" and "Company Consent" mean a written
request, order or consent, respectively, signed in the name of the Company by
(i) the Company's Chairman of the Board or a Vice Chairman, its President or a
Vice President, and (ii) by the Company's Treasurer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary or an Assistant Secretary, and
delivered to the Trustee, provided, however, that such written request or
order may be signed by any two of the officers or directors listed in clause
(i) above in lieu of being signed by one of such officers or directors listed
in such clause (i) and one of the officers listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, Adjusted Consolidated Net
Income for such period:
(1) plus, to the extent such amount was deducted in calculating such
Adjusted Consolidated Net Income:
(A) Consolidated Interest Expense;
(B) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or
losses or sales of assets);
(C) depreciation expense;
(D) amortization expense; and
(E) all other non-cash items reducing Adjusted Consolidated Net
Income (other than items that will require cash payments and for
which an accrual or reserve is, or is required by GAAP to be, made),
less all non-cash items increasing Adjusted Consolidated Net Income,
all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP; and
(2) solely for purposes of calculating the amount of Restricted
Payments that may be made pursuant to Section 10.04(iv)(C), less (to the
extent not otherwise reduced in accordance with GAAP) the aggregate amount
of deposits made by the Company and its Restricted Subsidiaries after the
Existing High Yield Closing Date in connection with proposed Asset
Acquisitions that are forfeited by the Company or any of its Restricted
Subsidiaries; provided, however, that, if any Restricted Subsidiary is not
a Wholly Owned Restricted
10
Subsidiary, Consolidated EBITDA shall be reduced (to the extent not
otherwise reduced in accordance with GAAP) by an amount equal to:
(A) the amount of the Adjusted Consolidated Net Income
attributable to such Restricted Subsidiary multiplied by;
(B) the percentage ownership interest in the income of such
Restricted Subsidiary not owned on the last day of such period by
the Company or any of its Restricted Subsidiaries.
"Consolidated Interest Expense" means, for any period, the aggregate
amount of interest in respect of Indebtedness (including, without limitation,
amortization of Original Issue Discount on any Indebtedness and the interest
portion of any deferred payment obligation, calculated in accordance with the
effective interest method of accounting; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing; the net costs associated with Interest Rate Agreements;
and interest on Indebtedness that is Guaranteed or secured by the Company or
any of its Restricted Subsidiaries) and all but the principal component of
rentals in respect of Capitalized Lease Obligations, in each case that is
paid, accrued or scheduled to be paid or to be accrued by the Company and its
Restricted Subsidiaries during such period: excluding, however:
(1) in calculating Consolidated EBITDA, any amount of such interest
of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net
Income pursuant to clause (3) of the definition thereof (but only in the
same proportion as the net income of such Restricted Subsidiary is
excluded from the calculation of Adjusted Consolidated Net Income
pursuant to clause (3) of the definition thereof); and
(2) any premiums, fees and expenses (and any, amortization thereof)
payable in connection with the offering of any series of Securities under
this Indenture, all as determined on a consolidated basis, (without
taking into account Unrestricted Subsidiaries) in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Transaction Date, the ratio
of:
11
(1) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis outstanding on such
Transaction Date to;
(2) the aggregate amount of Consolidated EBITDA for the then most
recent four fiscal quarters for which the Company's financial statements
have been filed with the SEC or provided to the Trustee pursuant to
Section 10.18 (such four fiscal quarter period being the "Four Quarter
Period"); provided, however, that in making the foregoing calculation:
(A) pro forma effect shall be given to any Indebtedness to be
Incurred or repaid on the Transaction Date;
(B) pro forma effect shall be given to Asset Dispositions and
Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur from
the beginning of the Four Quarter Period through the Transaction
Date (the "Reference Period"), as if they had occurred and such
proceeds had been applied on the first day of such Reference Period;
and
(C) pro forma effect shall be given to asset dispositions and
asset acquisitions (including giving pro forma effect to the
application of proceeds of any asset disposition) that have been
made by any Person that has become a Restricted Subsidiary or has
been merged with or into the Company or any Restricted Subsidiary
during such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred
when such Person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference
Period;
provided, however, that to the extent that clause (B) or (C) of this
sentence requires that pro forma effect be given to an Asset Acquisition
or Asset Disposition, such pro forma calculation shall be based upon the
four full fiscal quarters immediately preceding the Transaction Date of
the Person, or division or line of business of the Person, that is
acquired or disposed of for which financial information is available.
12
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the Company's most recently available
quarterly or annual consolidated balance sheet and those of its Restricted
Subsidiaries (which shall be as of a date not more than 90 days prior to the
date of such computation, and which shall not take into account Unrestricted
Subsidiaries), less any amounts attributable to Disqualified Stock or any
equity security convertible into or exchangeable for Indebtedness, the cost of
treasury stock and the principal amount of any promissory notes receivable
from the sale of the Company's Capital Stock or any of its Restricted
Subsidiaries, each item to be determined in conformity with GAAP (excluding
the effects of foreign currency exchange adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No.
52).
"Conversion Agent" means any Person authorized by the Company to receive
Securities to be converted into Common Stock or other Marketable Securities on
behalf of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Securities on its behalf. The Company may at any time
and from time to time authorize one or more Persons to act as Conversion Agent
in addition to or in place of the Trustee with respect to any series of
Securities issued under this Indenture.
"Conversion Price" means, with respect to any series of Securities which
are convertible into Common Stock or other Marketable Securities, the price
per share of Common Stock or the price per designated unit of other Marketable
Security at which the Securities of such series are so convertible as set
forth in the Board Resolution with respect to such series, as the same may be
adjusted from time to time in accordance with Section 12.03 (or such
supplemental indenture).
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at The Chase
Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Agreement" means credit agreements, vendor financings, or similar
facilities or arrangements made available from time to time to the Company and
its Restricted Subsidiaries from banks, other financial institutions and/or
equipment manufacturers for the Incurrence of Indebtedness, including letters
of credit and any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith,
13
as the same may be amended, supplemented, modified or restated from time to
time.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
"Current Market Price" on any date shall mean the average of the daily
Closing Prices per share of Common Stock or of such other Marketable
Securities for any 30 consecutive Trading Days selected by the Company prior
to the day in question, which 30 consecutive Trading Day period shall not
commence more than 45 Trading Days prior to the day in question; provided,
however, that with respect to Section 12.03(3), the "Current Market Price" of
the Common Stock or of such other Marketable Securities shall mean the average
of the daily Closing Prices per share of common Stock or of such other
Marketable Securities for the five consecutive Trading Days ending on the date
of the distribution referred to in Section 12.03(3) (or if such date shall not
be a Trading Day, on the Trading Day immediately preceding such date).
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depository" means, unless otherwise specified by the Company pursuant to
either Section 2.04 or 3.01, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the
Exchange Act or other applicable statute or regulation.
"Disqualified Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is:
(1) required to be redeemed prior to the Stated Maturity of the
Securities of a series;
(2) redeemable at the option of the holder of such class or series
of Capital Stock at any time prior to the Stated Maturity of the
Securities of a series; or
(3) convertible into or exchangeable for Capital Stock referred to
in clause (1) or (2) above or
14
Indebtedness having a scheduled Maturity prior to the Stated Maturity of
the Securities of a series;
provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an Asset Sale or Change of Control occurring prior to the Stated
Maturity of the Securities of a series shall not constitute Disqualified Stock
if the Asset Sale or Change of Control provisions applicable to such Capital
Stock are no more favorable to the holders of such Capital Stock than the
provisions contained in Section 10.11 and Section 10.12 and such Capital
Stock, or the agreements or instruments governing the redemption rights
thereof, specifically provides, that such Person will not repurchase or redeem
any such stock pursuant to such provision prior to the Company's repurchase of
such Securities as are required to be repurchased pursuant to Section 10.11
and Section 10.12.
"Equity Offering" means an offering of the Company's Common Stock for
cash pursuant to an effective registration statement under the Securities Act
or an exemption from the registration requirements contained therein.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing High Yield Closing Date" means July 21, 1998.
"fair market value" means the price that would be paid in an arm's length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy, as determined in
good faith by the Board of Directors, whose determination shall be conclusive
if evidenced by a Board Resolution; provided, however, that for purposes of
Section 10.03(a)(viii),
(1) the fair market value of any security registered under the
Exchange Act shall be the average of the closing prices, regular way, of
such security for the 20 consecutive trading days immediately preceding
the sale of Capital Stock and
(2) in the event the aggregate fair market value of any other
property (other than cash or cash equivalents) received by the Company
exceeds $15 million, the fair market value of such property shall
15
be determined by a nationally recognized investment banking firm and set
forth in their written opinion which shall be delivered to the Trustee.
"Former Parent Companies" means Time Warner Inc., MediaOne Group, Inc.
(since acquired by AT&T Corporation), Advance/Xxxxxxxx Partnership and the
Affiliates of each of the foregoing.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including,
without limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved
by a significant segment of the accounting profession. All ratios and
computations contained or referred to in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis, except that calculations
made for purposes of determining compliance with the terms of the covenants
and with other provisions of this Indenture shall be made without giving
effect to:
(1) the amortization of any expenses incurred in connection with the
offering of any series of Securities under this Indenture; and
(2) except as otherwise provided, the amortization of any amounts
required or permitted by Accounting Principles Board Opinion Nos. 16 and
17.
"Global Security", when used with respect to any series of Securities
issued hereunder, means a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depository or pursuant to
the Depository's instruction, all in accordance with this Indenture and an
indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depository or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest
and which shall bear the legend as prescribed by Section 2.04(a)(iv).
16
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreements to keep- well, to
purchase assets, goods, securities or services (unless such purchase
arrangements are on arm's length terms and are entered into in the
ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Holder", when used with respect to any Security, means a
Securityholder.
"Incur" means, with respect to Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Indebtedness,
including an "Incurrence" of Acquired Indebtedness; provided, however, that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto, but excluding obligations with respect to
17
letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (1) or (2) above or (5),
(6) or (7) below) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
drawn upon, to the extent such drawing is reimbursed no later than the
third Business Day following receipt by such Person of a demand for
reimbursement);
(4) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due more
than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services,
except Trade Payables;
(5) all Capitalized Lease Obligations of such Person;
(6) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of such Indebtedness shall be
the lesser of (A) the fair market value of such asset at such date of
determination and (B) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to
the extent such Indebtedness is Guaranteed by such Person; and
(8) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation, provided
(A) that the amount outstanding at any time of any Indebtedness
issued with Original Issue Discount is the face amount of such
Indebtedness less the remaining unamortized portion of the Original
Issue Discount of such Indebtedness at the time of its issuance as
determined in conformity with GAAP;
18
(B) that money borrowed and set aside at the time of the
Incurrence of any Indebtedness in order to prefund the payment of
the interest on such Indebtedness shall not be deemed to be
"Indebtedness" so long as such money is held to secure the payment
of such interest; and
(C) that Indebtedness shall not include any liability for
federal, state, local or other taxes.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 3.01.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Interest Rate Agreement" means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option or future contract or other similar
agreement or arrangement.
"Investment" in any Person means any direct or indirect advance, loan or
other extension of credit (including, without limitation, by way of Guarantee or
similar arrangement; but excluding advances to customers in the ordinary course
of business that are, in conformity with GAAP, recorded as accounts receivable
on the Company's balance sheet or those of its Restricted Subsidiaries) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall
include;
(1) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary; and
19
(2) the fair market value of the Capital Stock (or any other
Investment), held by the Company or any of its Restricted Subsidiaries, of
(or in) any Person that has ceased to be a Restricted Subsidiary, including
without limitation, by reason of any transaction permitted by Section
10.06(iii); provided, however, that the fair market value of the Investment
remaining in any Person that has ceased to be a Restricted Subsidiary shall
not exceed the aggregate amount of Investments previously made in such
Person valued at the time such Investments were made less the net reduction
of such Investments.
For purposes of the definition of "Unrestricted Subsidiary" and
Section 10.04:
(1) "Investment" shall include the fair market value of the assets
(net of liabilities (other than liabilities of the Company or any of its
Restricted Subsidiaries)) of any Restricted Subsidiary at the time that
such Restricted Subsidiary is designated an Unrestricted Subsidiary;
(2) the fair market value of the assets (net of liabilities (other
than liabilities of the Company or any of its Restricted Subsidiaries))
of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary shall be considered a
reduction in outstanding Investments; and
(3) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its fair market value at the time of such transfer.
"Investment Grade" means a rating of any series of Securities under this
Indenture by both S&P and Xxxxx'x, each such rating being in one of such
agency's four highest generic rating categories that signifies investment grade
(i.e., BBB- (or the equivalent) or higher by S&P and Baa3 (or the equivalent) or
higher by Xxxxx'x); provided, however, that in each case, such ratings are
publicly available; provided further, however, that in the event Xxxxx'x or S&P
is no longer in existence, for purposes of determining whether such Securities
are rated "Investment Grade", such organization may be replaced by a nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) designated by us, notice of which designation shall be given to
the Trustee.
20
"Judgment Currency" has the meaning specified in Section 1.14.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof or any agreement to
give any security interest).
"Marketable Security" means any common stock, debt security or other
security of a Person which is (or will, upon distribution thereof, be) listed on
the NYSE, the American Stock Exchange or any national securities exchange
registered under Section 6 of the Exchange Act or approved for quotation in the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System or any similar system of automated dissemination of
quotations of securities prices in the United States or for which there is a
recognized market maker or trading market.
"Maturity", when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated` Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Cash Proceeds" means;
(1) with respect to any Asset Sale, the proceeds of such Asset Sale
in the form of cash or cash equivalents, including payments in respect of
deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent such obligations are
financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received
when converted to cash or cash equivalents, net of
(A) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers)
related to such Asset Sale;
(B) provisions for all taxes (whether or not such taxes will
actually be paid or are payable)
21
as a result of such Asset Sale without regard to the Company's
consolidated results of operations and those of the Company's
Restricted Subsidiaries, taken as a whole;
(C) payments made to repay Indebtedness or any other obligation
outstanding at the time of such Asset Sale that either (i) is
secured by a Lien on the property or assets sold or (ii) is required
to be paid as a result of such sale; and
(D) appropriate amounts to be provided by the Company or any
Restricted Subsidiary as reserve against any liabilities associated
with such Asset Sale, including, without limitation, pension and
other post employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in
conformity with GAAP and
(2) with respect to any issuance or sale of Capital Stock, the
proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not
interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary) and proceeds
from the conversion of other property received when converted to cash or
cash equivalents, net of attorney's fees, accountants' fees,
underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof.
"New York Banking Day" has the meaning specified in Section 1.14.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Offer to Purchase" means an offer to purchase by the Company from the
Holders commenced by mailing a notice to the Trustee and each Holder stating:
(1) the covenant pursuant to which the offer is being made and that
all Securities of a series validly
22
tendered will be accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed) (the "Payment Date");
(3) that any Securities of a series not tendered will continue to
accrue interest pursuant to their terms;
(4) that, unless the Company defaults in the payment of the purchase
price, any Securities of a series accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment
Date;
(5) that Holders electing to have Securities of a series purchased
pursuant to the Offer to Purchase will be required to surrender such
Securities, together with the form entitled "Option of the Holder to
Elect Purchase" on the reverse side of such Securities completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day immediately preceding the Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram,
facsimile transmission or letter setting forth the name of such Holder,
the principal amount of any Securities of a series under this Indenture
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Securities purchased; and
(7) that Holders whose Securities of a series are being purchased
only in part will be issued new Securities of such series equal in
principal amount to the unpurchased portion of such Securities
surrendered; provided, however, that each such Security purchased and
each new Security issued shall be in a principal amount of $1,000 or an
integral multiple thereof.
On the Payment Date, the Company shall:
(A) accept for payment on a pro rata basis any Securities of a
series under this Indenture or portions thereof tendered pursuant to
an Offer to Purchase;
23
(B) deposit with the Paying Agent money sufficient to pay the
purchase price of such Securities or portions thereof so accepted;
and
(C) deliver, or cause to be delivered, to the Trustee all such
Securities or portions thereof so accepted together with an
Officers' Certificate specifying the Securities or portions thereof
accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price, and the
Trustee shall, upon a Company Order, promptly authenticate and mail to
such Holders new Securities of such series equal in principal amount to
any unpurchased portion of the Securities surrendered; provided, however,
that each Security purchased and each new Security issued shall be in a
principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of an Offer to Purchase as soon as
practicable after the Payment Date. The Trustee shall act as the Paying
Agent for an Offer to Purchase.
The Company will comply with Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable, in the event that the Company is
required to repurchase any Securities of a series under this Indenture
pursuant to an Offer to Purchase.
"Officer" means, with respect to the Company, (i) the Chairman of the Board
of Directors, the Chief Executive Officer, the President, any Vice President or
the Chief Financial Officer, and (ii) the Treasurer or any Assistant Treasurer,
or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by one Officer listed in
clause (i) of the definition thereof and one Officer listed in clause (ii) of
the definition thereof or two Officers listed in clause (i) of the definition
thereof. Each Officers' Certificate (other than certificates provided pursuant
to TIA Section 314(a)(4)) shall include the statements provided for in Section
1.02.
"Opinion of Counsel" means a written opinion signed by legal counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee
of or of counsel to the Company, which is delivered to the Trustee. Such
counsel shall be acceptable to the Trustee, whose acceptance shall not be
unreasonably withheld.
24
"Original Issue Discount Security" means (i) any Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof, and (ii) any other
security which is issued with "original issue discount" within the meaning of
Section 1273(a) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancelation pursuant to Section 3.09;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided,
however, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
3.06 (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 Company).
In determining whether the Holders of the requisite principal amount of
such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of any Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of the taking of such action
upon a declaration of acceleration of the Maturity thereof, and (ii)
Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent
25
or waiver, only Securities which a Responsible Officer of the Trustee
knows to be owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor 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 to act as owner with
respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Payment Date" has the meaning provided in the definition of Offer to
Purchase.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company. The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
"Permitted Investment" means:
(1) an Investment in the Company or a Restricted Subsidiary or a
Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into, or
transfer or convey all or substantially all its assets to the Company, or
a Restricted Subsidiary; provided, however, that such Person's primary
business is related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such Investment;
(2) Temporary Cash Investments;
(3) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP;
(4) stock, obligations or securities received in settlement of
Indebtedness Incurred in the ordinary course of business, upon
foreclosure of a Lien created in the ordinary course of business or in
satisfaction of judgments, including in connection with a bankruptcy
proceeding; or
26
(5) Investments in prepaid expenses, negotiable instruments held for
collection and lease, utility and worker's compensation, performance and
other similar deposits;
(6) Interest Rate Agreements and Currency Agreements designed solely
to protect the Company or its Restricted Subsidiaries against
fluctuations in interest rates or foreign currency exchange rates;
(7) loans or advances to the Company's officers or employees or
those of any Restricted Subsidiary that do not in the aggregate exceed $2
million at any time outstanding; and
(8) Investments in any Person that is engaged in the
telecommunications business and that is not the Company's Affiliate or a
Related Person.
"Permitted Liens" means
(1) Liens for taxes, assessments, governmental charges or claims
that are being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or
other appropriate provision, if any, as shall be required in conformity
with GAAP shall have been made;
(2) statutory and common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent of being contested in good faith by
appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP shall have been made;
(3) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security;
(4) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance
and return-of-money bonds and other obligations of a similar nature
incurred in the ordinary course of
27
business (exclusive of obligations for the payment of borrowed money);
(5) easements, rights-of-way, municipal and zoning ordinances and
similar charges, encumbrances, title defects or other irregularities that
do not materially interfere with the ordinary course of business of the
Company or any of its Restricted Subsidiaries;
(6) Liens (including extensions and renewals thereof) upon real or
personal property acquired after the Existing High Yield Closing Date;
provided, however, that
(A) such Lien is created solely for the purpose of securing
Indebtedness Incurred, in accordance with Section 10.03, to finance
the cost (including the cost of design, development, acquisition,
construction, installation, improvement, transportation or integration
and all transaction costs related to the foregoing) of the item of
property or assets subject thereto and such Lien is created prior to,
at the time of or within six months after the later of the
acquisition, the completion of construction or the commencement of
full operation of such property;
(B) the principal amount of the Indebtedness secured by such
Lien does not exceed 100% of such cost; and
(C) any such Lien shall not extend to or cover any property or
assets other than such item of property or assets and any
improvements on such item;
(7) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its
Restricted Subsidiaries, taken as a whole;
(8) Liens encumbering property or assets under construction arising
from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or assets;
(9) any interest or title of a lessor in the property subject to any
Capitalized Lease or operating lease;
(10) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
28
(11) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or
becomes a part of, any Restricted Subsidiary; provided, however, that
such Liens do not extend to or cover any property or assets of, the
Company or any Restricted Subsidiary other than the property or assets
acquired;
(12) Liens in favor of the Company or any Restricted Subsidiary;
(13) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary that does not give rise
to an Event of Default;
(14) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to
such letters of credit and the products and proceeds thereof;
(15) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(16) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are within the general parameters
customary in the industry and incurred in the ordinary course of
business, in each case, securing Indebtedness under Interest Rate
Agreements and Currency Agreements and forward contracts, options, future
contracts, futures options or similar agreements or arrangements designed
solely to protect the Company or any of its Restricted Subsidiaries from
fluctuations in interest rates, currencies or the price of commodities;
(17) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
the Company or any of its Restricted Subsidiaries in the ordinary course
of business in accordance with the past practices of the Company and its
Restricted Subsidiaries prior to the Existing High Yield Closing Date;
(18) Liens on or sales of receivables; and
(19) Liens that secure Indebtedness with an aggregate principal
amount not in excess of $5 million at any time outstanding.
29
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or any agency or instrumentality
thereof. "Place of Payment" means, with respect to any series of Securities
issued hereunder, the city or political subdivision so designated with respect
to the series of Securities in question in accordance with the provisions of
Section 3.01.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Stock" means, with respect to any Person, Capital Stock issued
by such Person that is entitled to preference or priority over one or more
series or classes of other Capital Stock issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or upon
liquidation.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price specified in the Security at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Related Person" means, as applied to any Person, any other Person directly
or indirectly owning:
(1) 10% or more of the outstanding Common Stock of such Person (or, in
the case of a Person that is not a corporation, 10% or more of the
outstanding equity interest in such Person) or
(2) 10% or more of the combined outstanding voting power of the Voting
Stock of such Person, and all Affiliates of any such other Person.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
30
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Required Currency", when used with respect to any Security, has the
meaning set forth in Section 1.14.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Payments" has the meaning provided in Section 10.04.
"Restricted Subsidiary" means any of the Company's Subsidiaries other than
an Unrestricted Subsidiary.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 3.05.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 3.05. The Company initially appoints the Trustee to act as
Security Registrar for the Securities on its behalf. The Company may at any time
and from time to time authorize any Person to act as Security Registrar in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
"Securityholder" means a Person in whose name a security is registered in
the Security Register.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its Subsidiaries,
(1) for the Company's most recent fiscal year, accounted for more than
10% of the consolidated revenue of the Company and its Restricted
Subsidiaries; or
31
(2) as of the end of such fiscal year, was the owner of more than 10%
of the Company's consolidated assets and those of its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements for such fiscal year.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Specified Date" means any Redemption Date, any Payment Date for an Offer
to Purchase or any date on which any Securities of a series under this Indenture
first become due and payable after an Event of Default.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, and its successors.
"Stated Maturity" means:
(1) with respect to any Security, the date specified in such Security
as the fixed date on which the final installment of principal of such
Security is due and payable; and
(2) with respect to any scheduled installment of principal of or
interest on any Security as the fixed date on which such installment is due
and payable.
"Strategic Subordinated Indebtedness" means the Company's Indebtedness
Incurred to finance the acquisition of a Person engaged in a business that is
related, ancillary or complementary to the business conducted by the Company or
any of its Restricted Subsidiaries, which Indebtedness by its terms, or by the
terms of any agreement or instrument pursuant to which such Indebtedness is
Incurred: (1) is expressly made subordinate in right of payment to any
Securities under this Indenture; and
(2) provides that no payment of principal, premium or interest on, or
any other payment with respect to, such Indebtedness may be made prior to
the payment in full of all of the Company's obligations under such
Securities; provided, however, that such Indebtedness may provide for and
be repaid at any time from the proceeds of the sale of the Company's
Capital Stock (other than Disqualified Stock) or other of the Company's
Indebtedness which by its terms, or by the terms of any agreement or
instrument pursuant to which such other Indebtedness is Incurred, meets
clauses (1)
32
and (2) above after the Incurrence of such Indebtedness.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding Voting Stock is owned, directly or indirectly, by such Person
and one or more other Subsidiaries of such Person.
"Tax Amount" means, with respect to any period, without duplication, the
increase in the cumulative United States Federal, state and local tax liability
of holders of equity interests in the Company (or if such holder is a
pass-through entity for United States income tax purposes, holders of its equity
interests) in respect of their interests in the Company for such period plus any
additional amounts payable to such holders to cover taxes arising from the
ownership of such equity interests in the Company but excluding any increase in
tax liability or additional amounts payable in respect of a gain realized by a
holder of an equity interest in the Company upon the sale or disposition by such
holder of an equity interest, including without limitation, any redemption
thereof by the Company.
"Temporary Cash Investment" means any of the following:
(1) direct obligations of the United States of America or any agency
thereof or obligations fully and unconditionally guaranteed by the United
States of America or any agency thereof;
(2) time deposit accounts, certificates of deposit and money market
deposits maturing within one year of the date of acquisition thereof issued
by a bank or trust company which is organized under the laws of the United
States of America, any state thereof or any foreign country recognized by
the United States of America, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $500 million (or the
foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) or any money-market fund sponsored by a
registered broker dealer or mutual fund distributor;
33
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
(4) commercial paper, maturing not more than one year after the date
of acquisition, issued by a corporation (other than a Company Affiliate)
organized and in existence under the laws of the United States of America,
any state thereof or any foreign country recognized by the United States of
America with a rating at the time as of which any Investment therein is
made of "P-1" (or higher) according to Moody's or "A-1" (or higher)
according to S and P;
(5) securities with maturities of six months or less from the date of
acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by S&P or Moody's;
(6) corporate debt securities with maturities of eighteen months or
less from the date of acquisition and with a rating at the time as of which
any Investment therein is made of "A3" (or higher) according to Moody's or
"A-" (or higher) according to S and P; and
(7) money market funds at least 95% of the assets of which are
invested in the foregoing.
"Trade Payables" means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person or any of its Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods or
services.
"Trading Day" shall mean, with respect to the Common Stock or a Marketable
Security, so long as the Common Stock or such Marketable Security, as the case
may be, is listed or admitted to trading on the NYSE, a day on which the NYSE is
open for the transaction of business, or, if the Common Stock or such Marketable
Security, as the case may be, is not listed or admitted to trading on the NYSE,
a day on which the principal national securities exchange on which the Common
Stock or such Marketable Security, as the case may be, is listed is open for the
transaction of business, or, if the Common Stock or such Marketable Security, as
the
34
case may be, is not so listed or admitted for trading on any national
securities exchange, a day on which NASDAQ is open for the transaction of
business.
"Tranche" has the meaning specified in Section 11.03.
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" or "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the Trustee in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean and
include each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of 1978, as
amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary of the Company by the Board
of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Restricted Subsidiary (including
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any of the Company's Capital Stock, or owns or holds
any Lien on any of the Company's property or those of any Restricted Subsidiary;
provided, however, that
35
(A) any Guarantee by the Company or any Restricted Subsidiary of
any Indebtedness of the Subsidiary being so designated shall be deemed
an "Incurrence" of such Indebtedness and an "Investment" by the
Company or such Restricted Subsidiary (or both, if applicable) at the
time of such designation;
(B) either (i) the Subsidiary to be so designated has total
assets of $1,000 or less or (ii) if such Subsidiary has assets greater
than $1,000, such designation would be permitted under Section 10.04;
and
(C) if applicable, the Incurrence of Indebtedness and the
Investment referred to in clause (A) of this proviso would be
permitted under Section 10.03 and Section 10.04.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that (1) no Default or Event of
Default shall have occurred and be continuing at the time of or after giving
effect to such designation and (2) all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately after such designation would, if
Incurred at such time, have been permitted to be Incurred (and shall be deemed
to have been Incurred) for all purposes of this Indenture. Any such designation
by the Board of Directors shall be evidenced to the Trustee by promptly filing
with the Trustee a copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which it is full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof at any time prior
to the Stated Maturity of such Securities, 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, however, that
36
(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.
"Vice President" when used with respect to the Company or the Trustee means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president", including, without limitation,
an assistant vice president.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for election of directors,
managers or other voting members of the governing body of such Persons.
"Wholly Owned" means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than
any director's qualifying shares or Investments by foreign nationals mandated by
applicable law) by such Person or one or more Wholly Owned Subsidiaries of such
Person.
SECTION 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any (including any
covenants compliance with which constitutes a condition 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, if any (including any covenants compliance with which
constitutes a condition precedent), have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than annual statements of
compliance provided pursuant to Section 10.21) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
37
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons may
certify or give an opinion as to the other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
38
SECTION 1.04. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing or may be embodied in one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or may be embodied in or evidenced by an electronic
transmission which identifies the documents containing the proposal on which
such consent is requested and certifies such Securityholders' consent thereto
and agreement to be bound thereby; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. If any Securities are denominated in coin or currency other than that
of the United States, then for the purposes of determining whether the Holders
of the requisite principal amount of Securities have taken any action as herein
described, the principal amount of such Securities shall be deemed to be that
amount of United States dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the Trustee
by an Officers' Certificate) as of the date the taking of such action by the
Holders of such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. If any Securities are Original
Issue Discount Securities, then for the purposes of determining whether the
Holders of the requisite principal amount of Securities have taken any action as
herein described, the principal amount of such Original Issue Discount
Securities shall be deemed to be the amount of the principal thereof that would
be due and payable upon a declaration of acceleration of the Maturity thereof as
of the date the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in the first sentence of this
Section 1.04(a). Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
39
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any
such record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Holders of
record at the close of business on the record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite proportion of
Securities Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Securities Outstanding shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by the
Holders on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date, and that no such authorization, agreement or consent may
be amended, withdrawn or revoked once given by a Holder, unless the Company
shall provide for such amendment, withdrawal or revocation in conjunction with
such solicitation of
40
authorizations, agreements or consents or unless and to the
extent required by applicable law.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon whether or not notation of
such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Institutional Trust Services; or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
5.01(4) and (5) or, in the case of a request for repayment, as specified in
the Security carrying the right to repayment) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address
of its principal office specified in the first paragraph of this
instrument, Attention: Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Securityholder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. Any notice or
communication shall also be mailed to any Person described in TIA Section
313(c), to the extent required by the TIA. Copies of any such communication or
notice to a Holder shall also be mailed to the Trustee and each Agent at the
same time. In any case where notice to Securityholders is given by mail, neither
the failure to
41
mail such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security 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 Securityholders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to any Securityholder when such notice is required to be given
pursuant to any provision of this Indenture, then any method of notification as
shall be satisfactory to the Trustee and the Company shall be deemed to be a
sufficient giving of such notice.
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 1.07. Conflict with Trust Indenture Act. If and to the extent that
any provision hereof limits, qualifies or conflicts with the duties imposed by,
or with another provision (an "incorporated provision") included in this
Indenture by operation of, any of Sections 310 to 318, inclusive, of the Trust
Indenture Act, such imposed duties or incorporated provision shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind successors and assigns, whether so expressed
or not. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 1.10. Separability clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
42
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in any
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Security Registrar and the Holders of Securities (or such of them as may be
affected thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 1.12. Governing Law. This Indenture shall be construed in
accordance with and governed by the laws of the State of New York. The Trustee,
the Company and the Holders agree to submit to the jurisdiction of the courts of
the State of New York in any action or proceeding arising out of or relating to
this Indenture or the Securities.
SECTION 1.13. Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 1.14. Judgment Currency. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, on the Securities
of any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in the City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing,
43
"New York Banking Day" means any day except a Saturday, Sunday or a legal
holiday in the City of New York or a day on which banking institutions in the
City of New York are authorized or required by law or executive order to close.
SECTION 1.15. Payment Date Other Than a Business Day. If an Interest
Payment Date, Redemption Date, Payment Date, Stated Maturity or date of Maturity
of any Security shall not be a Business Day, then payment of principal of,
premium, if any, or interest on such Security as the case may be, need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the Interest Payment Date, Payment Date or
Redemption Date, or at the Stated Maturity or date of Maturity of such Security:
provided that no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Payment Date, Redemption Date,
Stated Maturity or date of Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the Officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods 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, subject, with
respect to the Securities of any series, to the rules of any securities exchange
on which such Securities are listed.
SECTION 2.02. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
44
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved thereby or, if a Board
Resolution authorizes a specific Officer or Officers to approve a form of
Security, a certificate of such Officer or Officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication for any Security issued pursuant to this
Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
by
------------------------
Authorized Officer
SECTION 2.04. Securities Issuable in the Form of a Global Security. (a) If
the Company shall establish pursuant to Sections 2.02 and 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 3.03 and the Company
Order delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
a Company Order, (ii) shall be registered in the name of the Depository for such
Global Security or Securities or its nominee, (iii) shall be
45
delivered by the Trustee or its agent to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of the Depository to Issuer or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the
name of the nominee of the Depository or in such other name as is requested by
an authorized representative of the Depository (and any payment is made to the
nominee of the Depository or to such other entity as is requested by an
authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, the nominee of the Depository, has an interest herein.
Unless and until it is exchanged in whole or in part for individual securities
registered in the names of participants in the Depository, this certificate may
not be transferred except as a whole by the Depository or by a nominee of the
Depository to the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository."
(b) Notwithstanding any other provision of this Section 2.04 or of Section
3.05, and subject to the provisions of paragraph (c) below, unless the terms of
a Global Security expressly permit such Global Security to be exchanged in whole
or in part for individual Securities, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 3.05, only to a
nominee of the Depository for such Global Security, or to the Depository, or a
successor Depository for such Global Security selected or approved by the
Company, or to a nominee of such successor Depository.
(c) (i) If at any time the Depository for a Global Security notifies the
Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time the Depository for the Securities for such series
shall no longer be eligible or in good standing under the Exchange Act, as
amended, or other applicable statute or regulation, the Company shall appoint a
successor Depository with respect to such Global Security. If a successor
Depository for such Global Security is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an
46
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine that
the Securities of any series or portion thereof issued or issuable in the form
of one or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the Trustee,
upon receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for such Global Security
or Securities.
(iii) If specified by the Company pursuant to Sections 2.02 and 3.02 with
respect to Securities issued or issuable in the form of a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depository. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service charge, (1)
to each Person specified by such Depository a new Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest as specified by such Depository in the
Global Security; and (2) to such Depository a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee or its agent will authenticate and
deliver individual Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for individual Securities, such Global Security shall be canceled by
the Trustee or its agent. Except as provided in the preceding paragraph,
Securities issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depository for such Global Security, pursuant to
47
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver at its Corporate Trust Office such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE III
The Securities
--------------
SECTION 3.01. General Title; General Limitations; Issuable in Series; Terms
of Particular Series. The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series as from time to time may
be authorized by the Board of Directors. There shall be established in or
pursuant to a Board Resolution and set forth in an Officers' Certificate or in a
supplemental indenture, subject to Section 3.11, prior to the issuance of
Securities of any such series:
(1) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of any other
series);
(2) any limit on the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture;
(3) the date or dates on which the principal and premium with respect
to the Securities of such series is payable;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of such series shall bear interest (if any) or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable or the method by which such dates will be determined and the
Regular Record Date for any interest payable on any Interest Payment Date
and the basis upon which interest will be calculated if other than that of
a 360-day year of twelve 30-day months;
(5) the currency or currencies or units based on or related to
currencies in which Securities of the series shall be denominated and in
which payments of
48
principal of, and any premium and interest on, such Securities shall or may
be payable, if other than U.S. dollars, the place or places, if any, in
addition to or instead of the corporate trust office of the Trustee where
the principal, premium and interest with respect to Securities of such
series shall be payable;
(6) the period or periods within which, the Redemption Price or Prices
or the Repayment Price or Prices, as the case may be, at which and the
terms and conditions upon which Securities of such series may be redeemed
or repaid, as the case may be, in whole or in part, at the option of the
Company or the Holder;
(7) whether Securities of such series are to be issued in registered
form or bearer form or both and, if Securities are to be issued in bearer
form, whether coupons will be attached to them, whether Securities of the
series which are in bearer form may be exchanged for Securities of the
series issued in registered form, and the circumstances under which and the
places at which any such exchanges, if permitted, may be made;
(8) if any Securities of such series are to be issued in bearer form
or as one or more Global Securities representing individual Securities of
the series in bearer form, whether certain provisions for the payment of
additional interest or tax redemptions shall apply; whether interest with
respect to any portion of a temporary Security of the series in bearer form
payable with respect to any Interest Payment Date prior to the exchange of
such temporary Security in bearer form for definitive Securities of the
series in bearer form shall be paid to any clearing organization with
respect to the portion of such temporary Security in bearer form held for
its account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date; and the terms upon which a
temporary Security in bearer form may be exchanged for one or more
definitive Securities of the series;
(9) the obligation, if any, of the Company to purchase, redeem or
repay Securities of such series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of such
49
series shall be purchased, redeemed or repayed, in whole or in part,
pursuant to such obligation;
(10) provisions, if any, with regard to the conversion or exchange of
the Securities of such series, at the option of the Holders thereof or the
Company, as the case may be, for or into new Securities of a different
series, Common Stock or other securities and, if the Securities of such
series are convertible into Common Stock or other Marketable Securities,
the Conversion Price therefor;
(11) if other than denominations of $1000 and any integral multiple
thereof, the denominations in which Securities of such series shall be
issuable;
(12) if the amount of principal, premium or interest with respect to
the Securities of such series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be
determined;
(13) if the principal amount payable at the Stated Maturity of
Securities of such series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount that will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity
other than the Stated Maturity or which will be deemed to be outstanding as
of any such date, and, if necessary, the manner of determining the
equivalent thereof in United States currency;
(14) any changes or additions to the provisions of this Indenture
dealing with defeasance;
(15) 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 or provable in
bankruptcy;
(16) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the Trust Indenture Act of 1939, as amended, are
applicable and any corresponding changes to provisions of this Indenture as
then in effect;
50
(17) any Event of Default with respect to the Securities of such
series, if not set forth herein, and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable
to the Securities of such series and any change in the right of the Trustee
or the Holders to declare the principal, premium and interest with respect
to such Securities due and payable;
(18) if the Securities of such series shall be issued in whole or in
part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities; and the
Depository for such Global Securities or Securities;
(19) any Authenticating or Paying Agents, transfer agents or
Registrars;
(20) the applicability of, and any addition to or change in, Article X
or in the terms then set forth in this Indenture relating to permitted
consolidations, mergers or sales of assets;
(21) the terms, if any, of any guarantee of the payment of principal,
premium, and interest with respect to Securities of the series and any
corresponding changes to the provisions of this Indenture as then in
effect;
(22) the subordination, if any, of the Securities of the series
pursuant to this Indenture and any changes or additions to the provisions
of this Indenture relating to subordination;
(23) with regard to Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(24) any other terms of such series.
all upon such terms as may be determined in or pursuant to such Board Resolution
and set forth in an Officers' Certificate or in a supplemental indenture with
respect to such series.
The form of the Securities of each series shall be established pursuant to
the provisions of this Indenture in or pursuant to the Board Resolution or in
the supplemental indenture creating such series. The Securities of each
51
series shall be distinguished from the Securities of each other series in such
manner, reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing for the method by which such terms or provisions shall be determined.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of the Company by an Officer of the
Company under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
Officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate (such Officers'
Certificate shall
52
certify that such issuance of Securities is in compliance with Article X) and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section
1.02, and the Board Resolution and any certificate relating to the issuance of
the series of Securities required to be furnished pursuant to Section 2.02, an
Opinion of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the Company and,
assuming due authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an action at
law or in equity) and entitled to the benefits of this Indenture, equally
and ratably with all other Securities, if any, of such series Outstanding;
(4) the Indenture is qualified under the Trust Indenture Act; and
(5) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture with respect to that series of Securities have been
complied with, the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and delivered and
constitutes the legal, valid and
53
binding obligation of the Company enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and legal principles
affecting creditors' rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity).
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancelation as provided in Section 3.09, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and, upon receipt of the
documents required by Section 3.03, together with a Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities of such
series shall be exchangeable for
54
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment,
without charge to the Holder; and upon surrender for cancelation of any one or
more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series of authorized denominations and of like
tenor and terms. Until so exchanged the temporary Securities of such series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. Registration, Transfer and Exchange. The Company shall keep
or cause to be kept a register or registers (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities, or of
Securities of a particular series, and of transfers of Securities or of
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the Company as provided in Section 10.02. There shall
be only one Security Register per series of Securities.
Subject to Section 2.04, upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company maintained for
such purpose in a Place of Payment, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms.
Subject to Section 2.04, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Securityholder making the exchange is entitled to receive.
55
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed, by the Holder thereof or his attorney
duly authorized in writing. Unless otherwise provided in the Security to be
registered for transfer or exchange, no service charge shall be made on any
Securityholder for any registration of transfer or exchange of Securities, but
the Company may (unless otherwise provided in such Security) require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not
involving any transfer.
The Registrar shall not be required (i) to issue, register the transfer of
or exchange any Security of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption under Section 11.03 and ending
at the close of business on the date of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part.
SECTION 3.06. Mutilated, Destroyed, Lost and Wrongfully Taken Securities.
If (i) any mutilated Security is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
wrongful taking of any Security, and (ii) there is delivered to the Company and
the Trustee such Security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a protected purchaser, the Company shall
issue and upon its written request the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such mutilated, destroyed, lost or wrongfully
taken Security, a new Security of like tenor, series, Stated Maturity and
principal amount, bearing a number not contemporaneously outstanding.
56
In case any such mutilated, destroyed, lost or wrongfully taken Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company, 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 this Indenture equally and
proportionately with any and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or wrongfully taken Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 3.01,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of his having been such Holder; and,
except as hereinafter provided, such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or clause (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
57
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first
class postage prepaid, to the Holder of each such Security at his address
as it appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
If any installment of interest the Stated Maturity of which is on or prior
to the Redemption Date for any Security called for redemption pursuant to
Article XI is not paid or duly provided for on or prior to the Redemption Date
in accordance with the foregoing provisions of this Section, such interest shall
be payable as part of the Redemption Price of such Securities.
58
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Section 3.07) interest on,
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 3.09. Cancelation. All Securities surrendered for payment,
conversion, redemption, registration of transfer, exchange or credit against a
sinking fund shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already canceled, shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly canceled by the Trustee. No Security shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. The Trustee
shall dispose of all canceled Securities in accordance with its standard
procedures.
SECTION 3.10. Computation of Interest. Unless otherwise provided as
contemplated in Section 3.01, interest on the Securities shall be calculated on
the basis of a 360- day year of twelve 30-day months.
SECTION 3.11. Delayed Issuance of Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at
59
one time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Order otherwise required pursuant to Sections 1.02, 2.02,
3.01 and 3.03 at or prior to the time of authentication of each Security of such
series if such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of such
series to be issued; provided, however, that any subsequent request by the
Company to the Trustee to authenticate Securities of such series upon original
issuance shall constitute a representation and warranty by the Company that as
of the date of such request, the statements made in the Officers' Certificate or
other certificates delivered pursuant to Sections 1.02 and 2.02 shall be true
and correct as if made on such date.
A Company Order, Officers' Certificate or Board Resolution or supplemental
indenture delivered by the Company to the Trustee in the circumstances set forth
in the preceding paragraph may provide that Securities which are the subject
thereof will be authenticated and delivered by the Trustee or its agent on
original issue from time to time in the aggregate principal amount, if any,
established for such series pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by Company Order upon the
telephonic, electronic or written order of Persons designated in such Company
Order, Officers' Certificate, supplemental indenture or Board Resolution (any
such telephonic or electronic instructions to be promptly confirmed in writing
by such Persons) and that such Persons are authorized to determine, consistent
with such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution, such terms and conditions of said Securities as are specified in
such Company Order, Officers' Certificate, supplemental indenture or Board
Resolution.
ARTICLE IV
Discharge Of Indenture
----------------------
SECTION 4.01. Termination of Company's Obligations. Except as otherwise
provided in this Section 4.01, ----- the Company may terminate its obligations
under any series of Securities and, with respect to such series, under this
Indenture if:
(1) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of
such series that have
60
been replaced or Securities of such series that are paid pursuant to
Section 10.01 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 4.05) have been delivered to the Trustee
for cancelation and the Company has paid all sums payable by it hereunder;
or
(2) (A) all Securities of such series have become due and payable,
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 Company irrevocably deposits in trust
with the Trustee during such one-year period under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders for that
purpose, money or U.S. Government Obligations sufficient (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 of any interest thereon, to pay, through
the payment of principal, premium, if any, and interest in accordance with
their terms not later than one day prior to the relevant due date,
principal, premium, if any, 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, (C) 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, (D) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is
bound and (E) the Company 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 satisfaction and
discharge of this Indenture have been complied with.
With respect to the foregoing clause (1), the Company's obligations under
Section 6.07 shall survive. With respect to the foregoing clause (2), the
Company's obligations in Sections 3.02, 3.03, 3.05, 3.06, 3.07, 4.04, 4.05,
4.06, 6.06, 6.07, 6.10, 10.01, 10.02 and 10.20, shall survive until the
Securities of such series are no longer Outstanding. Thereafter, only the
Company's obligations in Sections 6.07, 4.04, 4.05 and 4.06 shall survive. After
any such irrevocable deposit, the Trustee upon request shall
61
acknowledge in writing the discharge of the Company's obligations
under the Securities of such series, and this Indenture except for those
surviving obligations specified above.
SECTION 4.02. Defeasance and Discharge of Indenture. The Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series on the 123rd day after the date of the
deposit referred to in clause (A) of this Section 4.02, 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 Company, shall execute
proper instruments acknowledging the same, except as to (i) rights of
registration of transfer and exchange, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Holders to receive payments of principal thereof and interest thereon, (iv) the
rights, obligations and immunities of the Trustee hereunder and (v) the rights
of the Holders as beneficiaries of this Indenture with respect to the property
so deposited with the Trustee payable to all or any of them; provided, however,
that the following conditions have been satisfied if:
(A) with reference to this Section 4.02, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee and
conveyed all right, title and interest to the Trustee for the benefit of
the Holders, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee for the benefit of the Holders as
security for payment of the principal of, premium, if any, and interest, if
any, on the Securities of a Series, and dedicated solely to, the benefit of
the Holders, in and to (1) money in an amount, (2) U.S. Government
Obligations that, through the payment of interest, premium, if any, and
principal in respect thereof in accordance with their terms, will provide,
not later than one day before the due date of any payment referred to in
this clause (A), money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, without consideration of
the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect thereof payable
by the Trustee, the principal of, premium, if any, and interest on the
Outstanding Securities on the Stated Maturity of such
62
principal or interest; provided, however, that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government obligations to the payment of such principal, premium, if any,
and interest with respect to the Securities;
(B) the Company has delivered to the Trustee (1) either (i) an Opinion
of Counsel to the effect that Holders of the Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section 4.02
provision 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 option had not been exercised, which Opinion of Counsel must be based
upon (and accompanied by a copy of) a ruling of the Internal Revenue
Service to the same effect unless there has been a change in applicable
Federal income tax law after the date of this Indenture such that a ruling
is no longer required or (ii) a ruling directed to the Trustee received
from the Internal Revenue Service to the same effect as the aforementioned
Opinion of Counsel and (2) an Opinion of Counsel to the effect that the
creation of the defeasance trust does not violate the Investment Company
Act of 1940 and that after the passage of 123 days following the deposit
(except, with respect to any trust funds for the account of any Holder who
may be deemed to be an "insider" for purposes of the United States
Bankruptcy Code after one year following the deposit), the trust funds will
not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy
Code or Section 15 of the New York Debtor and Creditor Law;
(C) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and be continuing
on the date of such deposit or during the period ending on the 123rd day
after the date of such deposit, and such deposit shall not result in a
breach or violation of, or constitute a default under this Indenture, any
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(D) if at such time the Securities of such series are listed on a
national securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that such Securities will not be
63
delisted as a result of such deposit, defeasance and discharge; and
(E) the Company 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 4.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day (or one
year) period referred to in clause (B)(2) of this Section 4.02, none of the
Company's obligations under this Indenture shall be discharged. Subsequent to
the end of such 123-day (or one year) period with respect to this Section 4.02,
the Company's obligations in 3.02, 3.03, 3.05, 3.06, 3.07, 4.04, 4.05, 4.06,
6.07, 10.01, 10.02 and 10.20 shall survive until the Securities of such series
are no longer Outstanding. Thereafter, only the Company's obligations in
Sections 4.05 and 6.07 shall survive. If and when a ruling from the Internal
Revenue Service or an Opinion of Counsel referred to in clause (B)(i) of this
Section 4.02 is able to be provided specifically without regard to, and not in
reliance upon, the continuance of the Company's obligations under Section 10.01,
then the Company's obligations under such Section 10.01 shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance with
the other conditions precedent provided for herein relating to the defeasance
contemplated by this Section 4.02.
After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture except for those surviving
obligations in the immediately preceding paragraph.
SECTION 4.03. Defeasance of Certain Obligations. The Company may omit to
comply with any term, provision or condition set forth in clauses (iii) and (iv)
of Section 8.01 and Sections 10.03 through 10.11 and clause (3) of Section 5.01
with respect to clauses (iii) and (iv) of Section 8.01, clause (4) of Section
5.01 with respect to Sections 10.01, 10.02 and 10.12 through 10.19 and clauses
(5) and (6) of Section 5.01 shall be deemed not to be Events of Default, in each
case with respect to the outstanding Notes if:
(i) with reference to this Section 4.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another
64
trustee satisfying the requirements of Section 6.10) and conveyed all
right, title and interest to the Trustee for the benefit of the Holders,
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee as trust funds in trust, specifically pledged
to the Trustee for the benefit of the Holders as security for payment of
the principal of, premium, if any, and interest, if any, on the Securities,
and dedicated solely to, the benefit of the Holders, in and to (A) money in
an amount, (B) U.S. Government Obligations that, through the payment of
interest, premium, if any, and principal in respect thereof in accordance
with their terms, will provide, not later than one day before the due date
of any payment referred to in this clause (i), money in an amount or (C) a
combination thereof in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after
payment of all federal, state and local taxes or other charges and
assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and interest on the Outstanding Securities on the Stated
Maturity of such principal or interest; provided that the Trustee shall
have been irrevocably instructed to apply such money or the proceeds of
such U.S. Government Obligations to the payment of such principal, premium,
if any, and interest with respect to the Securities;
(ii) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (A) the creation of the defeasance trust does not violate
the Investment Company Act of 1940, (B) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any Securityholder who may be deemed to be an "insider" for
purposes of the United States Bankruptcy Code, after one year following the
deposit), the trust funds will not be subject to the effect of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor
and Creditor Law (C) the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance
of certain covenants and Events of Default 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 (D) the Trustee, for the benefit of the Holders,
65
has a valid first-priority security interest in the trust funds;
(iii) immediately after giving effect to such deposit on a pro forma
basis, no Default or Event of Default shall have occurred and the
continuing on the date of such deposit or during the period ending on the
123rd day after such date of such deposit, and such deposit shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(iv) if the Securities are then listed on a national securities
exchange, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Securities will not be delisted as a result of such
deposit, defeasance and discharge; and
(v) the Company 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 4.03 have been complied with.
SECTION 4.04. Application of Trust Money. Subject to Sections 4.05 and
4.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 4.01, 4.02 or 4.03, as the
case may be, and shall apply the deposited money and the money from the U.S.
Government Obligations in accordance with the series of Securities in respect of
which it was deposited and this Indenture to the payment of principal of,
premium, if any, and interest on such Securities; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 4.05. Repayment to Company. Subject to Sections 4.01, 4.02 and 4.03
and 6.07 the Trustee and the Paying Agent shall promptly pay to the Company upon
request set forth in an Officers' Certificate any excess money held by them at
any time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years; provided, however, that the
Trustee or such Paying Agent before being required to make any payment may cause
to be published at the expense of the Company once in a
66
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money at such Holder's address (as set forth in the Security
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 Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 4.06. Reinstatement. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with Section 4.01,
4.02 or 4.03, as the case may be, by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities of any series previously made subject to
Section 4.02 or Section 4.03 shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.01, 4.02 or 4.03, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 4.01, 4.02 or
4.03, as the case may be; provided, however, that, if the Company has made any
payment of principal of, premium, if any, or interest on any such series of
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such series of Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default", wherever used herein,
means with respect to any series of Securities any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in or pursuant
to the supplemental indenture or Board Resolution creating such
67
series of Securities or in the form of Security for such series:
(1) default in the payment of principal of (or premium, if any, on)
any Security of that series when the same becomes due and payable at
Maturity, upon acceleration, redemption or otherwise;
(2) default in the payment of interest on any Security of that series
when the same becomes due and payable, and such default continues for a
period of 30 days;
(3) default in the performance or breach of the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or
substantially all of the assets of the Company or the failure to make or
consummate an Offer to Purchase in accordance with Section 10.11 or Section
10.12;
(4) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or in respect of the
Securities of such series (other than a default specified in clause (1),
(2) or (3) above), and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee to the Company or by
the Holders of 25% or more in aggregate principal amount of the outstanding
securities of such series to the Company and the Trustee;
(5) there occurs with respect to any issue or issues of Indebtedness
of the Company or any Significant Subsidiary having an outstanding
principal amount of $12 million or more in the aggregate for all such
Persons, whether such Indebtedness now exists or shall hereafter be
created, (I) an event of default that has caused the holder thereof to
declare such Indebtedness to be due and payable prior to its Stated
Maturity and such Indebtedness has not been discharged in full or such
acceleration has not been rescinded or annulled within 30 days of such
acceleration and/or (II) the failure to make a principal payment at the
final (but not any interim) fixed Maturity and such defaulted payment shall
not have been made, waived or extended within 30 days of such payment
default;
(6) any final judgment or order (not covered by insurance) for the
payment of money in excess of $12 million in the aggregate for all such
final judgments or orders against all such Persons (treating
68
any deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company or any Significant Subsidiary and shall not be
paid or discharged, and there shall be any period of 30 consecutive days
following entry of the final judgment or order that causes the aggregate
amount for all such final judgments or orders outstanding and not paid or
discharged against all such Persons to exceed $12 million during which a
stay of enforcement of such final judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect;
(7) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs
of the Company or any Significant and, in each case, such decree or order
shall remain unstayed and in effect for a period of 30 consecutive days; or
(8) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in clause (7) or (8)
of Section 5.01) that occurs with respect to the Company and is continuing with
respect to any series, then and in each and every such case, unless the
principal of all 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 such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to
69
the Trustee if given by Holders), may, and the Trustee at the request of such
Holders shall, declare the principal of, premium, if any, (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 that series) of all the
Securities of such series and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities of
such series contained to the contrary notwithstanding. In the event of a
declaration of acceleration because an Event of Default set forth in clause (5)
of Section 5.01 has occurred and is continuing, such declaration of acceleration
shall be automatically rescinded and annulled if the event of default triggering
such Event of Default pursuant to clause (5) of Section 5.01 shall be remedied
or cured by the Company or the relevant Significant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto and the Company has paid to the Trustee all
amounts due pursuant to Section 6.07. If an Event of Default specified in clause
(7) or (8) of Section 5.01 occurs with respect to the Company, the principal of,
premium, if any, and accrued interest on the Securities of a Series then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any or all series, as the case may be, and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may waive all past Events of Defaults and rescind and
annul such declaration of acceleration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due to the
Trustee under Section 6.07
(ii) all overdue interest on all Securities,
70
(iii) the principal of and premium, if any, on any Security of
Such Series that have become due otherwise than by such declaration or
occurrence of acceleration and interest thereon at the rate prescribed
therefor by the terms of the Securities of such series, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest, if any, at the rate prescribed
therefor by the terms of the Securities of such series,
(b) all existing Events of default, other than the nonpayment of
the principal of, premium, if any, and accrued interest on the
Securities that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13
and
(c) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may, and at the direction of the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of such
series shall, pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of, premium, if any, or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
SECTION 5.04. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if an Event of Default in payment of
principal, premium or interest specified in clause (1), (2) or (3) of Section
5.01 occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company or any other obligor of
the Securities for the whole amount of principal, premium, if any, and accrued
interest remaining unpaid, together with interest on overdue principal, premium,
if any, and, to the extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate specified in the
terms of a series of Securities, and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
71
Trustee, its agents and counsel, and any amounts due to the Trustee under
Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.05. Trustee May File Proofs of Claim. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
6.07) and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor of the Securities), their creditors or their
property and shall be entitled and empowered to collect and receive any monies,
securities or other property payable or deliverable upon conversion or exchange
of the Securities or upon any such claims and to distribute the same, and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07. Nothing herein contained shall be
deemed to empower the Trustee to authorize or consent to, or accept or adopt on
behalf of any Holder, any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
72
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 5.06. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any
series may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel and
any other amounts due the Trustee under Section 6.07, be for the ratable benefit
of the Holders of the Securities of the series in respect of which such judgment
has been recovered.
SECTION 5.07. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities of such series and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively; and
THIRD: To the Company or any other obligors of such securities, as their
interests may appear, or as a court of competent jurisdiction may direct.
SECTION 5.08. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this
73
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of,
a continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60- day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series. For the purposes of Section 5.13 of this Indenture and this Section
5.08, the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal amount
of Outstanding Securities have concurred in any respect or direction of the
Trustee to pursue any remedy available to the Trustee or the Holders with
respect to this Indenture or the Securities or otherwise under law.
SECTION 5.09. Unconditional Right of Securityholders To Receive Principal,
Premium and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the
74
principal of (and premium, if any) and (subject to Section 3.07) interest on
such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repayment, on the Redemption Date or Repayment
Date, as the case may be) and to institute suit for the enforcement of any such
payment, on or after the due date of such payment and such right shall not be
impaired or affected without the consent of such Holder.
SECTION 5.10. Restoration of Rights and Remedies. If the Trustee or any
Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the Securityholders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Company, Trustee and the Securityholders shall continue as
though no such proceeding had been instituted.
SECTION 5.11. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities, 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.
SECTION 5.12. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
SECTION 5.13. Control by Securityholders. The Holders of at least a
majority in principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any
75
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that:
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine in writing that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with any such direction received from
Securityholders.
SECTION 5.14. Waiver of Past Defaults. Subject to Sections 5.02, 5.09 and
9.02, the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities of any series, by notice to the Trustee, may waive an
existing Default or Event of Default and its consequences, except a Default in
the payment of principal of, premium, if any, or interest on any Security of
that Series as specified in clause (1) or (2) of Section 5.01 or in respect of a
covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each Outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.15. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken 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 pursuant
to
76
Section 5.08, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series to which the
suit relates, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on an Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
SECTION 5.16. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default with respect to any series of Securities:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
77
(b) In case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise with respect to the
Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection 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, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults. Within 45 days after the occurrence of
any Default or Event of Default hereunder with respect to Securities of any
series, the Trustee shall transmit by mail to all Securityholders of such
series, in the manner and to the extent provided in TIA
78
Section 313(c), as their names and addresses appear in the Security Register,
notice of such Default or Event of Default hereunder known to the Trustee,
unless such Default or Event of Default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
5.01(5) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 45 days after the
occurrence thereof.
SECTION 6.03. Certain Rights of Trustee. Except as otherwise provided in
Section 6.01 and subject to TIA Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
79
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this 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 compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of the Trustee
assigned to the Corporate Trust Department of the Trustee (or any successor
division or department of the Trustee) shall have actual knowledge of such
Default or Event of Default or (2) written notice of such Default or Event
of Default shall have been given to the Trustee by the Company or any other
obligor on such Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture
provided that the Trustee's conduct does not constitute negligence or bad
faith.
80
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating Agent,
any Paying Agent, the Security Registrar, any Conversion Agent or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar, Conversion
Agent or such other agent, provided however, that the Trustee is subject to TIA
Section 310(b) and Section 311.
SECTION 6.06. Money Held in Trust. Subject to the provisions of Section
10.03 and Article IV hereof, all moneys in any currency or currency received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
81
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(7) or (8), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
The Company's obligations under this Section 6.07 and any lien arising
hereunder shall survive the resignation or removal of any Trustee, the discharge
of the Company's obligations pursuant to Article IV of this Indenture and/or the
termination of this Indenture. The Trustee shall comply with the provisions of
TIA Section 313(b)(2) to the extent applicable.
SECTION 6.08. Disqualification; Conflicting Interests. The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded this Indenture with respect to
Securities of any particular series of Securities other than that series.
Nothing herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder who satisfies the requirements of TIA Section
310(a)(1) and has a combined capital and surplus of at least $50,000,000. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
82
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company shall serve as trustee
for the Securities of any series issued hereunder. If at any time the Trustee
with respect to any series of Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation and Removal. (a) No resignation or removal of the
Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee
under Section 6.11.
(b) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of that series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 with respect to any series of
Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series
for at least six months, unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust Indenture
Act, or
(2) the Trustee shall cease to be eligible under Section 6.09 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
83
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of clause (4), with respect
to all series, or (ii) subject to Section 5.14, any Securityholder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, and at the expense of the
Company petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee with respect to the series,
or, in the case of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by Board Resolution, shall promptly appoint a successor Trustee for
that series of Securities. If, within one year after such resignation, removal
or incapacity, or the occurrence of such vacancy, a successor Trustee with
respect to such series of Securities shall be appointed by Act of the Holders of
a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company with respect to such series. If no successor
Trustee with respect to such series shall have been so appointed by the Company
or the Securityholders of such series and accepted appointment in the manner
hereinafter provided, subject to Section 5.14, any Securityholder who has been a
bona fide Holder of a Security of that series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to
84
any series and each appointment of a successor Trustee with respect to any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of that series as their names and
addresses appear in the Security Register. Each notice shall include the name of
the successor Trustee and the address of its principal Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective with respect to any series as to which it is resigning or being
removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of
the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 6.07. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the 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 being succeeded 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
hereunder
85
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to that series under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.14. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding the Trustee, with the approval of the Company,
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.06, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of
86
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and, if other than the Company itself,
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee,
with the approval of the Company, may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon
87
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
,
as Trustee
by
-------------------------------
As Authenticating Agent
by
-------------------------------
As Authorized Agent
ARTICLE VII
Securityholders' Lists and Reports by
Trustee and Company
-------------------
SECTION 7.01. Company To Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee:
(1) semi-annually, not more than 15 days after December 15 and June 15
in each year in such form as the Trustee may reasonably require, a list of
the names and addresses of the Holders of Securities of each series as of
such December 15 and June 15, as applicable, and
88
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
SECTION 7.02. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of Securities received by
the Trustee in its capacity as Security Registrar, if so acting and shall
otherwise comply with TIA Section 312(a). The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either:
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.02(a), and as to the approximate cost
of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
89
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of a Security of such series or to all Securityholders, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or all Securityholders, as the case may be, or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all Securityholders of such series or all
Securityholders, as the case may be, with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders of Securities in accordance with Section
7.02(b), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee. (a) Within 60 days after May 15 of each
year commencing with the first May 15 after the issuance of Securities, the
Trustee shall transmit by mail, at the Company's expense, to all Holders as
their names and addresses appear in the Security Register, as provided in Trust
Indenture Act 313(c), a brief
90
report dated as of May 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a).
(b) The Trustee shall transmit by mail, at the Company's expense, to all
Holders as their names and addresses appear in the Security Register, as
provided in Trust Indenture Act 313(c), a brief report in accordance with and
with respect to the matters required by Trust Indenture Act Section 313(b).
(c) A copy of each such report shall, at the time of such transmission to
Holders, be furnished to the Company and, in accordance with Trust Indenture Act
Section 313(d), be filed by the Trustee with each stock exchange upon which the
Securities are listed, and also with the Commission.
SECTION 7.04. Reports by Company. The Company shall file with the Trustee,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, however, that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission. The Company also shall comply with the
other provisions of Trust Indenture Act Section 314(a).
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
---------------------------------------------
SECTION 8.01. Consolidation, Merger, Conveyance or Transfer on Certain
Terms. The Company will not consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person or permit any
Person to merge with or into the Company unless: (i) the Company shall be the
continuing Person, or the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or leased
such property and assets of the Company shall be a corporation organized and
validly existing under the laws of the United States of America or any
jurisdiction thereof and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustee, all of the obligations of the Company on
all
91
of the Securities and under this Indenture; (ii) immediately after giving effect
to such transaction, no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such transaction on a pro
forma basis, the Company or any Person becoming the successor obligor of such
Securities shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction;
provided, however, that this clause (iii) shall only apply to a sale of
substantially all, but less than all, of the assets of the Company; (iv)
immediately after giving effect to such transaction on a pro forma basis the
Company, or any Person becoming the successor obligor of the Securities, as the
case may be, could Incur at least $1.00 of Indebtedness under the first
paragraph of Section 10.03; provided, however, that this clause (iv) shall not
apply to (x) a consolidation, merger or sale of all (but not less than all) of
the assets of the Company if all Liens and Indebtedness of the Company if
immediately after giving effect to such transaction on a pro forma basis, the
Company or any Person becoming the successor obligor on the Securities, as the
case may be, and its Restricted Subsidiaries outstanding immediately after such
transaction would, if Incurred at such time, have been permitted to be Incurred
(and all such Liens and Indebtedness, other than Liens and Indebtedness of the
Company and its Restricted Subsidiaries outstanding immediately prior to the
transaction, shall be deemed to have been Incurred) for all purposes of this
Indenture or (y) a consolidation, merger or sale of all or substantially all of
the assets of the Company or any Person becoming the successor obligor of the
Securities shall have a Consolidated Leverage Ratio equal to or less than the
Consolidated Leverage Ratio of the Company immediately prior to such
transaction; and (v) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to demonstrate compliance
with clauses (iii) and (iv) above) and an Opinion of Counsel, in each case
stating that such consolidation, merger or transfer and such supplemental
indenture complies with this provision and that all conditions precedent
provided for herein relating to such transaction have been complied with;
provided, however, that clauses (iii) and (iv) above do not apply if, in the
good faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose of
such transaction is to change the state of incorporation of the Company; and
provided further that any such transaction shall not have as one of its purposes
the evasion of the foregoing limitations.
92
SECTION 8.02. Successor Substituted. Upon any consolidation or merger, or
any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 8.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided, however, that the Company shall not be released
from its obligation to pay the principal of, premium, if any, or interest on the
Securities in the case of a lease of all or substantially all of its property
and assets.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency in this Indenture;
provided, however, that such amendments or supplements shall not, in the
good faith opinion of the Board of Directors as evidenced by a Board
Resolution, adversely affect the interests of the Holders in any material
respect;
(2) to comply with Article Eight;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee;
(5) to establish any form of Security, as provided in Article II and
to provide for the issuance of any series of Securities as provided in
Article III and to set forth the terms thereof, and/or to add to the rights
of the Holders of the Securities of any series or;
93
(6) to add one or more Subsidiary Guarantees on the terms required by
this Indenture; or
(7) to make any change that, in the good faith opinion of the Board of
Directors as evidenced by a Board Resolution, does not materially and
adversely affect the rights of any Holder.
(8) to provide for the issuance of Securities in coupon as well as
fully registered form; or
(9) to provide for the terms and conditions of conversion into Common
Stock or other Marketable Securities of the Securities of any series which
are convertible into Common Stock or other Marketable Securities, if
different from those set forth in Article XII; or
(10) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is not such Security
Outstanding.
No supplemental indenture for the purposes identified in clauses (2), (3),
(5) or (7) above may be entered into if to do so would adversely affect the
rights of the Holders of Outstanding Securities of any series in any material
respect.
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.
Subject to Sections 5.09 and 5.14 and without prior notice to the Holders, the
Company, when authorized by the Boards of Directors (as evidenced by Board
Resolutions), and the Trustee may amend this Indenture and such Securities with
the written consent of the Holders of a majority in aggregate principal amount
of the Securities then Outstanding, and the Holders of a majority in aggregate
principal amount of the Securities then Outstanding by written notice to the
Trustee may waive future compliance by the Company with any provision of this
Indenture or the Securities.
Notwithstanding the provisions of this Section 9.02, without the consent of
each Holder affected,
94
an amendment or waiver, including a waiver pursuant to Section 5.14, may not:
(i) change the Stated Maturity of the principal of, or any installment
of interest on, any Security;
(ii) reduce the principal amount of, premium, if any, or interest on
any Security;
(iii) change the place or currency of payment of principal of,
premium, if any, or interest on, any Security;
(iv) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of redemption, on
or after the Redemption Date) on any Security;
(v) reduce the percentage or principal amount of outstanding
Securities the consent of whose Holders is necessary to modify or amend
this Indenture or to waive compliance with certain provisions of or certain
Defaults under this Indenture;
(vi) waive a default in the payment of principal of, premium, if any,
or interest on, any Security; or
(vii) modify any of the provisions of this Section 9.02, 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.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional
95
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 6.01) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
TIA as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest. With respect to
each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in accordance
with their terms and this Indenture, and will duly comply with all the other
terms, agreements and
96
conditions contained in, or made in the Indenture for the benefit of, the
Securities of such series.
SECTION 10.02. Maintenance of Office or Agency. The Company will maintain
an office or agency in each Place of Payment where Securities may be presented
or surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange, where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served and where any
Securities with conversion privileges may be presented and surrendered for
conversion. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise set forth in, or pursuant to, a Board Resolution or
indenture supplemental hereto with respect to a series of Securities, the
Company hereby initially designates as the Place of Payment for each series of
Securities, the Borough of Manhattan, the City and State of New York, and
initially appoints the Trustee at its Corporate Trust Office as the Company's
office or agency for each such purpose in such city.
SECTION 10.03. Limitation on Indebtedness. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(other than Indebtedness existing on the Existing High Yield Closing Date);
provided, however, that the Company may Incur Indebtedness if, after giving
effect to the Incurrence of such Indebtedness and the receipt and application of
the proceeds therefrom, the Consolidated Leverage Ratio would be greater than
zero and less than 6.0:1.
Notwithstanding the foregoing, the Company and any Restricted Subsidiary
(except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time in an aggregate principal
amount not to exceed $300 million, less any amount of such Indebtedness
permanently repaid as provided under Section 10.11;
97
(ii) Indebtedness owed (A) to the Company evidenced by a promissory
note or (B) to any Restricted Subsidiary; provided, however, that any event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to
the Company or another Restricted Subsidiary) shall be deemed, in each
case, to constitute an Incurrence of such Indebtedness not permitted by
this clause (ii);
(iii) Indebtedness issued in exchange for, or the net proceeds of
which are used to refinance or refund, then outstanding Indebtedness (other
than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (viii) or
(ix) of this paragraph) and any refinancings thereof in an amount not to
exceed the amount so refinanced or refunded (plus premiums, accrued
interest, fees and expenses); provided, however, that Indebtedness the
proceeds of which are used to refinance or refund any series of Securities
under this Indenture or Indebtedness that is pari passu with, or
subordinated in right of payment to, such Securities shall only be
permitted under this clause (iii) if (A) in case any series of Securities
are refinanced in part or the Indebtedness to be refinanced is pari passu
with such Securities, such new Indebtedness, by its terms or by the terms
of any agreement or instrument pursuant to which such new Indebtedness is
outstanding, is expressly made pari passu with, or subordinate in right of
payment to, such Securities that remain outstanding, (B) in case the
Indebtedness to be refinanced is subordinated in right of payment to such
Securities, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is issued
or remains outstanding, is expressly made subordinate in right of payment
to such Securities at least to the extent that the Indebtedness to be
refinanced is subordinated to such Securities and (C) such new
Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such new
Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded; and provided further that in no
event may Indebtedness of the Company be refinanced by means of any
Indebtedness of any Restricted Subsidiary pursuant to this clause (iii);
(iv) Indebtedness (A) in respect of performance, surety or appeal
bonds provided in the ordinary course of business, (B) under Currency
Agreements and Interest Rate Agreements; provided, however, that such
agreements (a) are designed solely to protect the Company or its Restricted
Subsidiaries against fluctuations in foreign currency
98
exchange rates or interest rates and (b) do not increase the Indebtedness
of the Company outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates or by
reason of fees, indemnities and compensation payable thereunder, and (C)
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, or from Guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of the
Company or any of its Restricted Subsidiaries pursuant to such agreements,
in any case Incurred in connection with the disposition of any business,
assets or Restricted Subsidiary (other than Guarantees of Indebtedness
Incurred by any Person acquiring all or any portion of such business,
assets or Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary in connection
with such disposition;
(v) Indebtedness of the Company, to the extent the net proceeds
thereof are promptly (A) used to purchase Securities tendered in an Offer
to Purchase made as a result of a Change of Control or (B) deposited to
defease any series of Securities under this Indenture pursuant to Article
IV;
(vi) Guarantees of any series of Securities under this Indenture and
Guarantees of Indebtedness of the Company by any Restricted Subsidiary
provided the Guarantee of such Indebtedness is permitted by and made in
accordance with Section 10.07;
(vii) Indebtedness Incurred to finance the cost (including the cost of
design, development, acquisition, construction, installation, improvement,
transportation or integration and all transaction costs related to the
foregoing) to acquire equipment, inventory or network assets (including
acquisitions by way of Capitalized Lease and acquisitions of the Capital
Stock of a Person that becomes a Restricted Subsidiary to the extent of the
fair market value of the equipment, inventory or network assets so acquired
plus goodwill associated therewith) by the Company or a Restricted
Subsidiary after the date of this Indenture;
(viii) Indebtedness of the Company not to exceed, at any one time
outstanding, two times (A) the Net Cash Proceeds received by the Company
after the Existing High Yield Closing Date from the issuance and sale of
its Capital Stock (other than Disqualified Stock) to a Person that is not a
Subsidiary of the Company, to the extent (I) such Net Cash Proceeds have
not been used pursuant to clause (C)(2) of the
99
first paragraph or clause (iii), (iv), (vi) or (vii) of the second
paragraph of Section 10.04 to make a Restricted Payment and (II) if such
Net Cash Proceeds are used to consummate a transaction pursuant to which
the Company Incurs Acquired Indebtedness, the amount of such Net Cash
Proceeds exceeds one-half of the amount of Acquired Indebtedness so
Incurred and (B) 80% of the fair market value of property (other than cash
and cash equivalents) received by the Company after the Existing High Yield
Closing Date from the sale of its Capital Stock (other than Disqualified
Stock) to a Person that is not a Subsidiary of the Company, to the extent
(I) such sale of Capital Stock has not been used pursuant to clause (iii),
(iv), (vi) or (vii) of the second paragraph of Section 10.04 to make a
Restricted Payment and (II) if such Capital Stock is used to consummate a
transaction pursuant to which the Company Incurs Acquired Indebtedness, 80
% of the fair market value of the property received exceeds one-half of the
amount of Acquired Indebtedness so Incurred; provided, however, that such
Indebtedness does not mature prior to the longest Stated Maturity of any
Securities Outstanding under this Indenture and has an Average Life longer
than the Average Life of all Securities Outstanding under this Indenture;
(ix) Acquired Indebtedness;
(x) Strategic Subordinated Indebtedness; and
(xi) subordinated Indebtedness of the Company (in addition to
Indebtedness permitted under clauses (i) through (x) above) in an aggregate
principal amount outstanding at any time not to exceed $200 million, less
any amount of such Indebtedness permanently repaid as provided under
Section 10.11.
(b) Notwithstanding any other provision of this Section 10.03, the maximum
amount of Indebtedness that the Company or a Restricted Subsidiary may Incur
pursuant to this Section 10.03 shall not be deemed to be exceeded, with respect
to any outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness under
this Section 10.03, (1) Guarantees, Liens or obligations with respect to letters
of credit supporting Indebtedness otherwise included in the determination of
such particular amount shall not be included and (2) any Liens granted pursuant
to the equal and ratable provisions referred to in Section 10.09 shall not be
treated as Indebtedness. For purposes of determining compliance with this
Section 10.03, in the event that an item of Indebtedness meets the criteria of
more than one of
100
the types of Indebtedness described in the above clauses, the Company, in its
sole discretion, shall classify, and from time to time may reclassify, such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
(d) For purposes of determining compliance with any dollar-denominated
restriction on the Incurrence of Indebtedness denominated in a foreign currency,
the dollar-equivalent principal amount of such Indebtedness Incurred pursuant
thereto shall be calculated based on the relevant currency exchange rate in
effect on the date that such Indebtedness was Incurred, provided that (x) the
dollar-equivalent principal amount of any such Indebtedness outstanding on the
Existing High Yield Closing Date the relevant currency exchange rate in effect
on the Existing High Yield Closing Date and (y) if such Indebtedness is Incurred
to refinance other Indebtedness denominated in a foreign currency, and such
refinancing would cause the applicable dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such dollar-denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing
Indebtedness, converted into the currency in which the Indebtedness being
refinanced is denominated at the currency exchange rate in effect on the date of
such refinancing, does not exceed the principal amount of such Indebtedness
being refinanced (plus premiums, accrued interest, fees and expenses). The
principal amount of any Indebtedness Incurred to refinance other Indebtedness,
if Incurred in a different currency from the Indebtedness being refinanced,
shall be calculated based on the foreign currency exchange rate applicable to
the currencies in which such respective Indebtedness is denominated that is in
effect on the date of such refinancing.
SECTION 10.04. Limitation on Restricted Payments. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on or with
respect to its Capital Stock (other than (x) dividends or distributions payable
solely in shares of its Capital Stock (other than Disqualified Stock) or in
options, warrants or other rights to acquire shares of such Capital Stock and
(y) pro rata dividends or distributions on Common Stock of Restricted
Subsidiaries held by minority stockholders) held by Persons other than the
Company or any of its Restricted Subsidiaries;
101
(ii) purchase, redeem, retire or otherwise acquire for value any
shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary
(including options, warrants or other rights to acquire such shares of Capital
Stock) held by any Person or (B) a Restricted Subsidiary (including options,
warrants or other rights to acquire such shares of Capital Stock) held by any
Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or
any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock
of the Company;
(iii) make any voluntary or optional principal payment, or voluntary
or optional redemption, repurchase, defeasance, or other acquisition or
retirement for value, of Indebtedness of the Company that is subordinated in
right of payment to Securities Outstanding under this Indenture; or
(iv) make any Investment, other than a Permitted Investment, in any
Person (such payments or any other actions described in clauses (i) through (iv)
above being collectively "Restricted Payments") if, at the time of, and after
giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be
continuing;
(B) the Company could not Incur at least $1.00 of Indebtedness under
the first paragraph of Section 10.03; or
(C) the aggregate amount of all Restricted Payments (the amount, if
other than in cash, to be determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a Board
Resolution) made after the Existing High Yield Closing Date shall exceed
the sum of (1) the amount by which Consolidated EBITDA exceeds 150% of
Consolidated Interest Expense, in each case, determined on a cumulative
basis during the period (taken as one accounting period) beginning on the
first day of the fiscal quarter immediately following the Existing High
Yield Closing Date and ending on the last day of the last fiscal quarter
preceding the Transaction Date for which reports have been filed with the
Commission or provided to the Trustee pursuant to Section 10.18, plus (2)
the aggregate Net Cash Proceeds received by the Company after the Existing
High Yield Closing Date from the issuance and sale permitted by this
Indenture of its Capital Stock (other than Disqualified Stock) to a Person
who is not a Subsidiary of the Company, including an issuance or sale
permitted by this Indenture of Indebtedness of the
102
Company for cash subsequent to the Existing High Yield Closing Date upon
the conversion of such Indebtedness into Capital Stock (other than
Disqualified Stock) of the Company, or from the issuance to a Person who is
not a Subsidiary of the Company of any options, warrants or other rights to
acquire Capital Stock of the Company (in each case, exclusive of any
Disqualified Stock or any options, warrants or other rights that are
redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of such Securities), in each case except to
the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant
to clause (viii) or (ix) of the second paragraph under Section 10.03, plus
(3) an amount equal to the net reduction in Investments (other than
reductions in Permitted Investments) in any Person resulting from payments
of interest on Indebtedness, dividends, repayments of loans or advances, or
other transfers of assets, in each case to the Company or any Restricted
Subsidiary or from the Net Cash Proceeds from the sale of any such
Investment (except, in each case, to the extent any such payment or
proceeds are included in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in each case, the amount of Investments
previously made by the Company or any Restricted Subsidiary in such Person
or Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would comply
with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other acquisition or
retirement for value of Indebtedness that is subordinated in right of payment to
such Securities including premium, if any, and accrued and unpaid interest, with
the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of
the second paragraph of part (a) of Section 10.03;
(iii) the repurchase, redemption or other acquisition of Capital Stock of
the Company or an Unrestricted Subsidiary (or options, warrants or other rights
to acquire such Capital Stock) in exchange for, or out of the proceeds of a
substantially concurrent offering
103
of, shares of Capital Stock (other than Disqualified Stock) of the Company
(or options, warrants or other rights to acquire such Capital Stock);
(iv) the making of any principal payment or the repurchase, redemption,
retirement, defeasance or other acquisition for value of Indebtedness of the
Company which is subordinated in right of payment to any series of Securities
under this Indenture in exchange for, or out of the proceeds of a substantially
concurrent sale of, shares of the Capital Stock (other than Disqualified Stock)
of the Company (or options, warrants or other rights to acquire such Capital
Stock);
(v) payments or distributions to dissenting stockholders pursuant to
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Indenture
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company;
(vi) Investments in any Person the primary business of which is related,
ancillary or complementary to the business of the Company and its Restricted
Subsidiaries on the date of such Investments; provided, however, that the
aggregate amount of Investments made pursuant to this clause (vi) does not
exceed the sum of (a) $10 million and (b) the amount of Net Cash Proceeds
received by the Company after the Existing High Yield Closing Date from the sale
of its Capital Stock (other than Disqualified Stock) to a Person who is not a
Subsidiary of the Company, except to the extent such Net Cash Proceeds are used
to Incur Indebtedness pursuant to clause (viii) or (ix) under Section 10.03 or
to make Restricted Payments pursuant to clause (C)(2) of the first paragraph, or
clauses (iii) or (iv) of this paragraph, of this Section 10.04, plus (z) the net
reduction in Investments made pursuant to this clause (vi) resulting from
distributions on or repayments of such Investments or from the Net Cash Proceeds
from the sale of any such Investment (except in each case to the extent any such
payment or proceeds is included in the calculation of Adjusted Consolidated Net
Income) or from such Person becoming a Restricted Subsidiary (valued in each
case as provided in the definition of "Investments"), provided that the net
reduction in any Investment shall not exceed the amount of such Investment;
(vii) Investments acquired in exchange for Capital Stock (other than
Disqualified Stock) of the Company;
104
(viii) other Restricted Payments in an aggregate amount not to exceed $10
million;
(ix) for so long as the Company is treated as a pass-through entity for
United States Federal income tax purposes, distributions to equity holders of
the Company in an amount not to exceed the Tax Amount for such period; and
(x) the repurchase, redemption or other acquisition of Capital Stock of the
Company (or options, warrants or other rights to acquire such Capital Stock)
from Persons who are or were formerly directors, officers or employees of the
Company or any Restricted Subsidiary, provided that the aggregate amount of all
such repurchases made in any calendar year pursuant to this clause (x) shall not
exceed $2.0 million; provided, however, that, except in the case of clauses (i)
and (iii), no Default or Event of Default shall have occurred and be continuing
or occur as a consequence of the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding paragraph
(other than the Restricted Payment referred to in clause (ii) thereof, an
exchange of Capital Stock for capital Stock or Indebtedness referred to in
clause (iii) or (iv) thereof and an Investment referred to in clause (vi)
thereof), and the Net Cash Proceeds from any issuance of Capital Stock referred
to in clauses (iii), (iv) and (vi), shall be included in calculating whether the
conditions of clause (C) of the first paragraph of this Section 10.04 have been
met with respect to any subsequent Restricted Payments. In the event the
proceeds of an issuance of Capital Stock of the Company are used for the
redemption, repurchase or other acquisition of such Securities, or Indebtedness
that is pari passu with such Securities, then the Net Cash Proceeds of such
issuance shall be included in clause (C) of the first paragraph of this Section
10.04 only to the extent such proceeds are not used for such redemption,
repurchase or other acquisition of Indebtedness.
SECTION 10.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any kind on the ability
of any Restricted Subsidiary to (i) pay dividends or make any other
distributions permitted by applicable law on any Capital Stock of such
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary,
105
(iii) make loans or advances to the Company or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Company or any
other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances or
restrictions: (i) existing on the date of this Indenture or any other agreements
in effect on the Existing High Yield Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements; provided, however,
that the encumbrances and restrictions in any such extensions, refinancings,
renewals or replacements are no less favorable in any material respect to the
Holders than those encumbrances or restrictions that are then in effect and that
are being extended, refinanced, renewed or replaced; (ii) existing under or by
reason of applicable law or required by any regulatory authority having
jurisdiction over the Company or any Restricted Subsidiary; (iii) existing with
respect to any Person or the property or assets of such Person acquired by the
Company or any Restricted Subsidiary, existing at the time of such acquisition
and not incurred in contemplation thereof, which encumbrances or restrictions
are not applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired, and any
extensions, renewals or replacements of such encumbrances or restrictions;
provided, however, that the encumbrances and restrictions in any such
extensions, renewals or replacements are no less favorable in any material
respect to the Holders than those encumbrances or restrictions that are then in
effect and that are being extended, renewed or replaced; (iv) in the case of
clause (iv) of the first paragraph of this Section 10.05, (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or asset
that is a lease, license, conveyance or contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising
or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, detract from
the value of property or assets of the Company or any Restricted Subsidiary in
any manner material to the Company or any Restricted Subsidiary; (v) with
respect to a Restricted Subsidiary and imposed pursuant to an agreement that has
been entered into for the sale or disposition of all or substantially all of the
Capital Stock of, or property and assets of, such Restricted Subsidiary; or (vi)
contained in the terms of any Indebtedness or, any agreement pursuant to which
such Indebtedness was issued if (A) the encumbrance or
106
restriction either (1) applies only in the event of a payment default or
non-compliance with respect to a financial covenant contained in such
Indebtedness or agreement or (2) is contained in a Credit Agreement, (B) the
encumbrance or restriction is not materially more disadvantageous to the Holders
of Securities than is customary in comparable finances (as determined by the
Company) and (C) the Company determines on the date of the Incurrence of such
Indebtedness that any such encumbrance or restriction would not be expected to
materially impair the Company's ability to make principal or interest payments
on any series of Securities under this Indenture. Nothing contained in this
Section 10.05 shall prevent the Company or any Restricted Subsidiary from (1)
creating, incurring, assuming or suffering to exist any Liens otherwise
permitted in Section 10.09 or (2) restricting the sale or other disposition of
property or assets of the Company or any of its Restricted Subsidiaries that
secure Indebtedness of the Company or any of its Restricted Subsidiaries.
SECTION 10.06. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries. The Company will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except (i) to the Company or a
Wholly Owned Restricted Subsidiary; (ii) issuances of director's qualifying
shares or sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law; (iii) if,
immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any Investment
in such Person remaining after giving effect to such issuance or sale would have
been permitted to be made under Section 10.04 if made on the date of such
issuance or sale; or (iv) issuances or sales of Common Stock of a Restricted
Subsidiary, provided that the Company or such Restricted Subsidiary applies the
Net Cash Proceeds, if any, of any such sale in compliance with Section 10.11.
SECTION 10.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries. The Company will not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee any Indebtedness of the Company which is pari passu
with or subordinate in right of payment to any series of Securities under this
Indenture ("Guaranteed Indebtedness"), unless (i) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Guarantee (a
107
"Subsidiary Guarantee") of payment of such Securities by such Restricted
Subsidiary and (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided, however, that this
paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary
that existed at the time such person became a Restricted Subsidiary and was not
Incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with any
series of Securities under this Indenture, then the Guarantee of such Guaranteed
Indebtedness shall be pari passu with, or subordinated to, the Subsidiary
Guarantee or (B) subordinated to such Securities, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to such
Securities.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's and each
Restricted Subsidiary's Capital Stock in, or all or substantially all the assets
of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Indenture) or (ii) the release or discharge of the Guarantee
which resulted in the creation of such Subsidiary Guarantee, except a discharge
or release by or as a result of payment under such Guarantee.
SECTION 10.08. Limitation on Transactions with Stockholders and Affiliates.
The Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into, renew or extend any transaction (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with a Related Person or with any Affiliate of the
Company or any Restricted Subsidiary, except upon fair and reasonable terms no
less favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant to
a written agreement, at the time of the execution of the agreement providing
therefor, in a comparable arm's-length transaction with a Person that is not
such a Related Person or an Affiliate.
108
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view; (ii) any transaction
solely between the Company and any of its Wholly Owned Restricted Subsidiaries
or solely between Wholly Owned Restricted Subsidiaries; (iii) the payment of
reasonable and customary regular fees to directors of the Company who are not
employees of the Company; (iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other Person with which
the Company files a consolidated tax return or with which the Company is part of
a consolidated group for tax purposes; (v) any transaction with respect to the
lease or sharing or other use of cable or fiber lines, equipment, transmission
capacity, right-of-way or other access rights, between the Company or any
Restricted Subsidiary and any other Person; provided, however, that such
transaction is on terms that (A) are consistent with past practice of the
Company and its Restricted Subsidiaries and (B) are no less favorable, taken as
a whole, to the Company or the relevant Restricted Subsidiary than those that
could have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person (or, in the event that there are
no comparable transactions involving unrelated Persons to apply for comparative
purposes, is otherwise on terms that, taken as a whole, the Company has
determined to be fair to the Company or the relevant Restricted Subsidiary) or
(vi) any Restricted Payments not prohibited by Section 10.04. Notwithstanding
the foregoing, any transaction or series of related transactions covered by the
first paragraph of this Section 10.08 and not covered by clauses (ii) through
(vi) of this paragraph, the aggregate amount of which exceeds $10 million in
value, must be determined to be fair in the manner provided for in clause (i)(A)
or (B) above.
SECTION 10.09. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or suffer to exist
any Lien on any of its assets or properties of any character (including, without
limitation, licenses), or any shares of Capital Stock or Indebtedness of any
Restricted Subsidiary, without making effective provision for all of any series
of Securities under this Indenture and all other amounts due under this
Indenture to be directly secured equally and ratably with (or, if the obligation
or liability to be
109
secured by such Lien is subordinated in right of payment to such
Securities, prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to (i) Liens existing as of the
Existing High Yield Closing Date; (ii) Liens granted after the Existing High
Yield Closing Date on any assets or Capital Stock of the Company or its
Restricted Subsidiaries created in favor of the Holders; (iii) Liens with
respect to the assets of a Restricted Subsidiary granted by such Restricted
Subsidiary to the Company or a Wholly Owned Restricted Subsidiary to secure
Indebtedness owing to the Company or such other Restricted Subsidiary; (iv)
Liens securing Indebtedness which is Incurred to refinance secured Indebtedness
which is permitted to be Incurred under clause (iii) of the second paragraph of
Section 10.03; provided, however, that such Liens do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other than the
property or assets securing the Indebtedness being refinanced; (v) Liens on the
Capital Stock of, or any property or assets of, a Restricted Subsidiary securing
Indebtedness of such Restricted Subsidiary permitted under Section 10.03; or
(vi) Permitted Liens.
SECTION 10.10. Limitation on Sale-Leaseback Transactions. The Company will
not, and will not permit any Restricted Subsidiary to, enter into any
sale-leaseback transaction involving any of its assets or properties whether now
owned or hereafter acquired, whereby the Company or a Restricted Subsidiary
sells or transfers such assets or properties and then or thereafter leases such
assets or properties or any part thereof or any other assets or properties which
the Company or such Restricted Subsidiary, as the case may be, intends to use
for substantially the same purpose or purposes as the assets or properties sold
or transferred.
The foregoing restriction does not apply to any sale-leaseback transaction
if (i) the lease is for a period, including renewal rights, of not in excess of
three years; (ii) the lease secures or relates to industrial revenue or
pollution control bonds; (iii) the transaction is solely between the Company and
any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted
Subsidiaries; or (iv) the Company or such Restricted Subsidiary applies an
amount not less than the net proceeds received from such sale in compliance with
Section 10.11.
SECTION 10.11. Limitation on Asset Sales. The Company will not, and will
not permit any Restricted
110
Subsidiary to, consummate any Asset Sale, unless (i) the consideration received
by the Company or such Restricted Subsidiary is at least equal to the fair
market value of the assets sold or disposed of and (ii) at least 75 % of the
consideration received consists of cash, Temporary Cash Investments or the
assumption of Indebtedness of the Company (other than Indebtedness that is
subordinated to any Series of Securities under this Indentures) or of a
Restricted Subsidiary and unconditional release of the Company and its
Restricted Subsidiaries from all liability on the Indebtedness assumed;
provided, however, that this clause (ii) shall not apply to long-term
assignments of capacity in a telecommunications network. In the event and to the
extent that the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Sales occurring on or after the
date of this Indenture in any period of 12 consecutive months exceed 10 % of
Adjusted Consolidated Net Tangible Assets (determined as of the date closest to
the commencement of such 12-month period for which a consolidated balance sheet
of the Company and its Subsidiaries has been filed with the Commission pursuant
to Section 10.18), then the Company shall or shall cause the relevant Restricted
Subsidiary to (1) within 12 months after the date Net Cash Proceeds so received
exceed 10% of Adjusted Consolidated Net Tangible Assets (A) apply an amount
equal to such excess Net Cash Proceeds less any amounts invested within 6 months
prior to such Asset Sale in property or assets of a nature or type or that are
used in a business (or in a company having property and assets of a nature or
type, or engaged in a business) similar or related to the nature or type of the
property and assets of, or the business of, the Company and its Restricted
Subsidiaries on the date of such Asset Sale (the "Adjusted Net Cash Proceeds")
to permanently repay unsubordinated Indebtedness of the Company, or any
Restricted Subsidiary providing a Subsidiary Guarantee pursuant to Section 10.07
or Indebtedness of any other Restricted Subsidiary, in each case owing to a
Person other than the Company or any of its Restricted Subsidiaries or (B)
invest an equal amount, or the amount of Adjusted Net Cash Proceeds not so
applied pursuant to clause (A) (or enter into a definitive agreement committing
to so invest within 12 months after the date of such agreement), in property or
assets (other than current assets) of a nature or type or that are used in a
business (or in a company having property and assets of a nature or type, or
engaged in a business) similar or related to the nature or type of the property
and assets of, or the business of, the Company and its Restricted Subsidiaries
existing on the date of such investment (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and evidenced by a
Board Resolution) and
111
(2) apply (no later than the end of the 12-month period referred to in clause
(i)) such excess Adjusted Net Cash Proceeds (to the extent not applied pursuant
to clause (i)) as provided in the following paragraph of this Section 10.11. The
amount of such excess Adjusted Net Cash Proceeds required to be applied (or to
be committed to be applied) during such 12-month period as set forth in clause
(i) of the preceding sentence and not applied as so required by the end of such
period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this
Section 10.11 totals at least $10 million, the Company must commence, not later
than the fifteenth Business Day of such month, and consummate an Offer to
Purchase from the Holders on a pro rata basis an aggregate principal amount of
Securities and to the extent permitted or required by the terms thereof, any
other Indebtedness of the Company that is pari passu with such Securities, equal
to the Excess Proceeds on such date, at a purchase price equal to 100% of the
principal amount of such Securities and such other Indebtedness, if applicable,
on the relevant Payment Date, plus, in each case, accrued interest (if any) to
the Payment Date.
SECTION 10.12. Repurchase of Securities upon a Change of Control. The
Company shall commence within 30 days of the later of (a) the occurrence of a
Change of Control and (b) the end of the Change of Control Period with respect
to a Change of Control, and consummate an Offer to Purchase for all Securities
then Outstanding, at a purchase price equal to 101% of the principal amount
thereof on the relevant Payment Date, plus accrued interest (if any) to the
Payment Date; provided, however, that, the Company shall not be required to
commence and consummate an Offer to Purchase if, at the time specified above for
the commencement of an Offer to Purchase, such Securities shall be rated
Investment Grade.
SECTION 10.13. Existence. Subject to Articles VIII and X of this Indenture,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect their respective existences and the existence of
each of the Restricted Subsidiaries in accordance with the respective
organizational documents of the Company each Restricted Subsidiary and the
rights (whether pursuant to charter, partnership certificate, agreement, statute
or otherwise), licenses and franchises of the Company and each Restricted
Subsidiary; provided, however, that the Company shall not be required to
preserve
112
any such right, license or franchise, or the existence of any Restricted
Subsidiary, if the maintenance or preservation thereof is no longer desirable in
the conduct of the business of the Company and the Restricted Subsidiaries taken
as a whole.
SECTION 10.14. Payment of Taxes and Other Claims. The Company will pay or
discharge and shall cause each of the Restricted Subsidiaries to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges levied
or imposed upon (a) either the Company or any such Restricted Subsidiary, (b)
the income or profits of any such Restricted Subsidiary which is a corporation
or (c) the property of either the Company or any such Restricted Subsidiary and
(ii) all material lawful claims for labor, materials and supplies that, if
unpaid, might by law become a lien upon the property of the Company or any such
Restricted Subsidiary; provided, however, that the Company shall not be required
to pay or discharge, or cause to be paid or discharged, any such tax,
assessment, charge or claim the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established.
SECTION 10.15. Maintenance of Properties and Insurance. The Company will
cause all properties used or useful in the conduct of its business or the
business of any of the Restricted Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 10.15 shall prevent the Company or any Restricted
Subsidiary from discontinuing the use, operation or maintenance of any of such
properties or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company or of such Restricted Subsidiary having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or such Restricted Subsidiary.
The Company will provide or cause to be provided, for itself and the
Restricted Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds customarily insured against by corporations
similarly situated and owning like properties
113
with reputable insurers or with the government of the United States of America,
or an agency or instrumentality thereof, in such amounts, with such deductibles
and by such methods as the Company in good faith shall determine to be
reasonable and appropriate in the circumstances.
SECTION 10.16. Notice of Defaults. In the event that any Officer of the
Company becomes aware of any Default or Event of Default, the Company shall
promptly deliver to the Trustee an Officers' Certificate specifying such Default
or Event of Default.
SECTION 10.17. Compliance Certificates. The Company shall deliver to the
Trustee, within 90 days after the end of each fiscal year, an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that occurred during such fiscal year and, that a review has been
conducted of the activities of the Company and its Restricted Subsidiaries and
the Company's and the Restricted Subsidiaries' performance under this Indenture
and that the Company, as applicable, has complied with all conditions and
covenants under this Indenture. If any of the Officers of the Company signing
such certificate has knowledge of such a Default or Event of Default, the
certificate shall describe any such Default or Event of Default and its status.
SECTION 10.18. Commission Reports and Reports to Holders. The Company shall
file with the Commission all such reports and other information required by
Section 13(a) or 15(d) under the Exchange Act, regardless of whether such
Sections of the Exchange Act are applicable to the Company. The Company shall
supply the Trustee and each Holder or shall supply to the Trustee for forwarding
to each such Holder, without cost to such Holder, copies of such reports and
other information within 15 days after the date it would have been required to
file such reports or other information with the Commission had it been subject
to such Sections; provided, however, that the copies of such reports mailed to
Holders may omit exhibits which the Company will supply to any Holder at such
Holder's request. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 10.19. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Obligors from paying all or any portion of
the principal of, premium, if any, or interest on such Securities as
contemplated
114
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenant that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 10.20. Money for Security Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any) or interest on, any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any such
payment of
115
principal (and premium, if any) or interest on the Securities of such
series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities or for
any other purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying Agent in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
SECTION 10.21. Statement as to Compliance. The Company will deliver to the
Trustee, within 90 days after
116
the end of each fiscal year, an Officers' Certificate, stating that:
(1) a review of the activities of the Company and its Restricted
Subsidiaries during such year and of performance under this Indenture and
under the terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture and has complied
with all conditions and covenants on its part contained in this Indenture
through such year, or, if there has been a default in the fulfillment of
any such obligation, covenant or condition, specifying each such default
known to him and the nature and status thereof.
For the purpose of this Section 10.22, default and compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
ARTICLE XI
Redemption of Securities
-------------------------
SECTION 11.01. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of security for such
series established and approved pursuant to Section 2.02 and on such terms as
are specified in such form or in the indenture supplemental hereto with respect
to Securities of such series as provided in Section 3.01. Redemption of
Securities of any series shall be made in accordance with the terms of such
Securities and, to the extent that this Article does not conflict with such
terms, the succeeding Sections of this Article. Notwithstanding anything to the
contrary in this Indenture, except in the case of redemption pursuant to a
sinking fund, the Trustee shall not make any payment in connection with the
redemption of Securities until the close of business on the Redemption Date.
SECTION 11.02. Election To Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the election of the Company shall
be evidenced by, or pursuant to authority granted by, a Board Resolution. In
case of any redemption at the election
117
of the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series and the Tranche to be redeemed. The Company shall also notify the
Trustee the clause of this Indenture pursuant to which redemption is to take
place.
In the case of any redemption of Securities (i) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 11.03. Selection by Trustee of Securities To Be Redeemed. If less
than all the Securities of like tenor and terms of any series (a "Tranche") are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such Tranche not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may include
provision for the selection for redemption of portions of the principal of
Securities of such Tranche of a denomination larger than the minimum authorized
denomination for Securities of that series. Unless otherwise provided in the
terms of a particular series of Securities, the portions of the principal of
Securities so selected for partial redemption shall be equal to the minimum
authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Tranche of Securities to be redeemed shall be selected
by the Company.
If any convertible Security selected for partial redemption is converted in
part before the termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of fewer than all the Securities of a series or
Tranche, the Company and the Trustee may treat as Outstanding any Securities
surrendered
118
for conversion during the period of fifteen days next preceding the mailing of a
notice of redemption, and need not treat as Outstanding any Security
authenticated and delivered during such period in exchange for the unconverted
portion of any Security converted in part during such period.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
Securities shall be excluded from eligibility for selection for redemption
if they are identified by registration and certificate number in an Officers'
Certificate and delivered to the Trustee at least 60 days prior to the
Redemption Date as being owned of record and beneficially by, and not pledged or
hypothecated by either, (a) the Company or (b) an entity specifically identified
in such Officers' Certificate as being an Affiliate of the Company.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 (or 15 if so provided
in the Board Resolution establishing the relevant series) nor more than 60 days
prior to the Redemption Date, to each holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed;
(4) that, unless the Company defaults in making the redemption payment
on the Redemption Date the Redemption Price will become due and payable
upon each
119
such Security, and that interest, if any, thereon shall cease to accrue
from and after said date;
(5) the place where such Securities are to be surrendered for payment
of the Redemption Price, which shall be the office or agency of the Company
in the Place of Payment;
(6) that the redemption is on account of a sinking or purchase fund,
or other analogous obligation, if that be the case; and
(7) if such Securities are convertible into Common Stock or other
securities, the Conversion Price or other conversion price and the date on
which the right to convert such Securities into Common Stock or other
securities will terminate.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.05. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.20) an amount of money sufficient to pay the Redemption
Price of and accrued and unpaid interest on all the Securities which are to be
redeemed on that date. If any Security to be redeemed is converted into Common
Stock or other securities, any money so deposited with the Trustee or a Paying
Agent shall be paid to the Company upon Company Request or, if then so
segregated and held in trust by the Company, shall be discharged from such
trust.
SECTION 11.06. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein and
together with accrued and unpaid interest to such Redemption Date specified and
from and after such date (unless the Company shall default in the payment of the
Redemption Price) such Securities shall cease to bear interest and any rights to
convert such Securities shall terminate. Upon surrender of such Securities for
redemption in accordance with the notice, such Securities shall be paid by the
Company at the Redemption Price together with accrued and unpaid interest if any
to the Redemption Date. Unless otherwise provided with respect to such
Securities pursuant
120
to Section 3.01, installments of interest the Stated Maturity of which is on or
prior to the Redemption Date shall be payable to the Holders of such Securities
registered as such on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security, or as otherwise provided in
such Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 11.08. Provisions with Respect to Any Sinking Funds. Unless the
form or terms of any series of Securities shall provide otherwise, in lieu of
making all or any part of any mandatory sinking fund payment with respect to
such series of Securities in cash, the Company may at its option (1) deliver to
the Trustee for cancelation any Securities of such series theretofore acquired
by the Company or converted by the Holder thereof into Common Stock or other
securities, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company (including by way of optional
redemption (pursuant to the sinking fund or otherwise but not by way of
mandatory sinking fund redemption) or converted by the Holder thereof into
Common Stock or other securities and theretofore delivered to the Trustee for
cancelation, and if it does so then (i) Securities so delivered or credited
shall be credited at the applicable sinking fund Redemption Price with respect
to Securities of such series, and (ii) on or before the 60th day next preceding
each sinking fund Redemption Date with respect to such series of Securities, the
Company will deliver to the Trustee (A) an Officers' Certificate specifying the
portions of such sinking fund payment to be satisfied by payment of
121
cash and by delivery or credit of Securities of such series acquired by the
Company or converted by the Holder thereof, and (B) such Securities, to the
extent not previously surrendered. Such Officers' Certificate shall also state
the basis for such credit and that the Securities for which the Company elects
to receive credit have not been previously so credited and were not acquired by
the Company through operation of the mandatory sinking fund, if any, provided
with respect to such Securities and shall also state that no Event of Default
with respect to Securities of such series has occurred and is continuing. All
Securities so delivered to the Trustee shall be canceled by the Trustee and no
Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 11.06. The Trustee shall select, in the manner provided in
Section 11.03, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 11.04 (and with the
effect provided in Section 11.06) for the redemption of Securities in part at
the option of the Company. Any sinking fund moneys not so applied or allocated
by the Trustee to the redemption of Securities of such series shall be added to
the next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 11.08. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
122
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 11.08.
ARTICLE XII
Conversion
----------
SECTION 12.01. Conversion Privilege. In the event that this Article XII is
specified to be applicable to a series of Securities pursuant to Section 3.01,
the Holder of a Security of such series shall have the right, at such Holder's
option, to convert, in accordance with the terms of such series of Securities
and this Article XII, all or any part (in a denomination of, unless otherwise
specified in a Board Resolution or supplemental indenture with respect to
Securities of such series, $1,000 in principal amount or any integral multiple
thereof) of such Security into shares of Common Stock or other Marketable
Securities specified in such Board Resolution at any time or, as to any
Securities called for redemption, at any time prior to the time and date fixed
for such redemption (unless the Company shall default in the payment of the
Redemption Price, in which case such right shall not terminate at such time and
date).
SECTION 12.02. Conversion Procedure; Conversion Price; Fractional Shares.
(a) Each Security to which this Article is applicable shall be convertible at
the office of the Conversion Agent, and at such other place or places, if any,
specified in a Board Resolution with respect to the Securities of such series,
into fully paid and nonassessable shares (calculated to the nearest 1/100th of a
share) of Common Stock or other Marketable Securities. The Securities will be
converted into shares of Common Stock or such other Marketable Securities at the
Conversion Price therefor. No payment or adjustment shall be made in respect of
dividends on the Common Stock or such other Marketable Securities, or accrued
interest on a converted Security except as described in Section 12.09. The
Company may, but shall not be required, in connection with any conversion of
Securities, to issue a fraction of a share of Common Stock or of such other
Marketable Security, and, if the Company shall determine not to issue any such
fraction, the Company shall, subject to Section 12.03(4), make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the
Closing Price of the Common Stock or such other
123
Marketable Security on the last Trading Day prior to the date of conversion.
(b) Before any Holder of a Security shall be entitled to convert the same
into Common Stock or other Marketable Securities, such Holder shall surrender
such Security duly endorsed to the Company or in blank, at the office of the
Conversion Agent or at such other place or places, if any, specified in a Board
Resolution with respect to the Securities of such series, and shall give written
notice to the Company at said office or place that he elects to convert the same
and shall state in writing therein the principal amount of Securities to be
converted and the name or names (with addresses) in which he wishes the
certificate or certificates for Common Stock or for such other Marketable
Securities to be issued; provided, however, that no Security or portion thereof
shall be accepted for conversion unless the principal amount of such Security or
such portion, when added to the principal amount of all other Securities or
portions thereof then being surrendered by the Holder thereof for conversion,
exceeds the then effective Conversion Price with respect thereto. If more than
one Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares of Common Stock or such other Marketable Securities
which shall be deliverable upon conversion shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to
the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Security, or to his nominee or
nominees, certificates for the number of full shares of Common Stock or other
Marketable Security to which he shall be entitled as aforesaid, together,
subject to the last sentence of paragraph (a) above, with cash in lieu of any
fraction of a share to which he would otherwise be entitled. The Company shall
not be required to deliver certificates for shares of Common Stock or other
Marketable Securities while the stock transfer books for such stock or the
transfer books for such Marketable Securities, as the case may be, or the
Security Register are duly closed for any purpose, but certificates for shares
of Common Stock or other Marketable Securities shall be issued and delivered as
soon as practicable after the opening of such books or Security Register. A
Security shall be deemed to have been converted as of the close of business on
the date of the surrender of such Security for conversion as provided above, and
the person or persons entitled to receive the Common Stock or other Marketable
Securities issuable upon such conversion shall be treated for all purposes as
the record Holder or Holders of such
124
Common Stock or other Marketable Securities as of the close of business on such
date. In case any Security shall be surrendered for partial conversion, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the Securities so surrendered, without charge
to such Holder (subject to the provisions of Section 12.08), a new Security or
Securities in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Security.
SECTION 12.03. Adjustment of Conversion Price for Common Stock or
Marketable Securities. The Conversion Price with respect to any Security which
is convertible into Common Stock or other Marketable Securities shall be
adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to time while
any of such Securities are Outstanding, (i) pay a dividend in shares of its
Common Stock or other Marketable Securities, (ii) combine its outstanding
shares of Common Stock or other Marketable Securities into a smaller number
of shares or securities, (iii) subdivide its outstanding shares of Common
Stock or other Marketable Securities or (iv) issue by reclassification of
its shares of Common Stock or other Marketable Securities any shares of
stock or other Marketable Securities of the Company, then the Conversion
Price in effect immediately before such action shall be adjusted so that
the Holders of such Securities, upon conversion thereof into Common Stock
or other Marketable Securities immediately following such event, shall be
entitled to receive the kind and amount of shares of capital stock of the
Company or other Marketable Securities which they would have owned or been
entitled to receive upon or by reason of such event if such Securities had
been converted immediately before the record date (or, if no record date,
the effective date) for such event. An adjustment made pursuant to this
Section 12.03(1) shall become effective retroactively immediately after the
record date in the case of a dividend or distribution and shall become
effective retroactively immediately after the effective date in the case of
a subdivision, combination or reclassification. For the purposes of this
Section 12.03(1), each Holder of Securities shall be deemed to have failed
to exercise any right to elect the kind or amount of securities receivable
upon the payment of any such dividend, subdivision, combination or
reclassification (provided that if the kind or amount of securities
receivable upon such dividend,
125
subdivision, combination or reclassification is not the same for each
nonelecting share, then the kind and amount of securities or other property
receivable upon such dividend, subdivision, combination or reclassification
for each nonelecting share shall be deemed to be the kind and amount so
receivable per share by a plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from time to time while
any of such Securities are Outstanding, issue rights or warrants to all
holders of shares of its Common Stock or other Marketable Securities
entitling them (for a period expiring within 45 days after the record date
for such issuance) to subscribe for or purchase shares of Common Stock or
other Marketable Securities (or securities convertible into shares of
Common Stock or other Marketable Securities) at a price per share less than
the Current Market Price of the Common Stock or other Marketable Securities
at such record date (treating the price per share of the securities
convertible into Common Stock or other Marketable Securities as equal to
(x) the sum of (i) the price for a unit of the security convertible into
Common Stock or other Marketable Securities plus (ii) any additional
consideration initially payable upon the conversion of such security into
Common Stock or other Marketable Securities divided by (y) the number of
shares of Common Stock or other Marketable Securities initially underlying
such convertible security), the Conversion Price with respect to such
Securities shall be adjusted so that it shall equal the price determined by
dividing the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which
shall be the number of shares of Common Stock or other Marketable
Securities outstanding on the date of issuance of such rights or warrants
plus the number of additional shares of Common Stock or other Marketable
Securities offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible), and the
denominator of which shall be the number of shares of Common Stock or other
Marketable Securities outstanding on the date of issuance of such rights or
warrants plus the number of shares or securities which the aggregate
offering price of the total number of shares or securities so offered for
subscription or purchase (or the aggregate purchase price of the
convertible securities so offered plus the aggregate amount of any
additional consideration initially payable upon conversion of such
Securities into Common Stock or other Marketable Securities) would
126
purchase at such Current Market Price of the Common Stock or other
Marketable Securities. Such adjustment shall become effective retroactively
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants.
(3) In case the Company shall, at any time or from time to time while
any of such Securities are Outstanding, distribute to all holders of shares
of its Common Stock or other Marketable Securities (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation and the Common Stock or other
Marketable Securities are not changed or exchanged) cash, evidences of its
indebtedness, securities or assets (excluding (i) regular periodic cash
dividends in amounts, if any, determined from time to time by the Board of
Directors, (ii) dividends payable in shares of Common Stock or other
Marketable Securities for which adjustment is made under Section 12.03(1)
or (iii) rights or warrants to subscribe for or purchase securities of the
Company (excluding those referred to in Section 12.03(2)), then in each
such case the Conversion Price with respect to such Securities shall be
adjusted so that it shall equal the price determined by dividing the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction, the numerator of which shall be the Current
Market Price of the Common Stock or other Marketable Securities on the
record date referred to below, and the denominator of which shall be such
Current Market Price of the Common Stock or other Marketable Securities
less the then fair market value (as determined by the Board of Directors of
the Company, whose determination shall be conclusive) of the portion of the
cash or assets or evidences of indebtedness or securities so distributed or
of such subscription rights or warrants applicable to one share of Common
Stock or one other Marketable Security (provided that such denominator
shall never be less than 1.0); provided, however, that no adjustment shall
be made with respect to any distribution of rights to purchase securities
of the Company if a Holder of Securities would otherwise be entitled to
receive such rights upon conversion at any time of such Securities into
Common Stock or other Marketable Securities unless such rights are
subsequently redeemed by the Company, in which case such redemption shall
be treated for purposes of this Section as a dividend on the Common Stock
or other Marketable Securities. Such adjustment shall become effective
retroactively immediately after the record
127
date for the determination of stockholders or holders of Marketable
Securities entitled to receive such distribution; and in the event that
such distribution is not so made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such
record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by subsections
12.03(1), 12.03(2) and 12.03(3), as shall be necessary in order that any
dividend or distribution of Common Stock or other Marketable Securities,
any subdivision, reclassification or combination of shares of Common Stock
or other Marketable Securities or any issuance of rights or warrants
referred to above shall not be taxable to the holders of Common Stock or
other Marketable Securities for United States Federal income tax purposes.
(5) In any case in which this Section 12.03 shall require that any
adjustment be made effective as of or retroactively immediately following a
record date, the Company may elect to defer (but only for five (5) Trading
Days following the filing of the statement referred to in Section 12.05)
issuing to the Holder of any Securities converted after such record date
the shares of Common Stock and other capital stock of the Company or other
Marketable Securities issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the Company or other
Marketable Securities issuable upon such conversion on the basis of the
Conversion Price prior to adjustment; provided, however, that the Company
shall deliver to such Holder a due xxxx or other appropriate instrument
evidencing such Holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(6) All calculations under this Section 12.03 shall be made to the
nearest cent or one-hundredth of a share or security, with one-half cent
and .005 of a share, respectively, being rounded upward. Notwithstanding
any other provision of this Section 12.03, the Company shall not be
required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such
price. Any lesser adjustment shall be carried forward and shall be made at
the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried
128
forward, shall amount to an increase or decrease of at least 1% in such
price. Any adjustments under this Section 12.03 shall be made successively
whenever an event requiring such an adjustment occurs.
(7) In the event that at any time, as a result of an adjustment made
pursuant to this Section 12.03, the Holder of any Security thereafter
surrendered for conversion shall become entitled to receive any shares of
stock of or other Marketable Securities of the Company other than shares of
Common Stock or Marketable Securities into which the Securities originally
were convertible, the Conversion Price of such other shares or Marketable
Securities so receivable upon conversion of any such 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 Common Stock
and Marketable Securities contained in subparagraphs (1) through (6) of
this Section 12.03, and the provision of Sections 12.01, 12.02 and 12.04
through 12.09 with respect to the Common Stock or other Marketable
Securities shall apply on like or similar terms to any such other shares or
Marketable Securities and the determination of the Board of Directors as to
any such adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section (i) if the
effect thereof would be to reduce the Conversion Price below the par value
(if any) of the Common Stock or other Marketable Security, if any, or (ii)
subject to 12.03(5) hereof, with respect to any Security that is converted
prior to the time such adjustment otherwise would be made.
SECTION 12.04. Consolidation or Merger of the Company. In case of either
(a) any consolidation or merger to which the Company is a party, other than a
merger or consolidation in which the Company is the surviving or continuing
corporation and which does not result in a reclassification of, or change (other
than a change in par value or from par value to no par value or from no par
value to par value, as a result of a subdivision or combination) in, outstanding
shares of Common Stock or other Marketable Securities or (b) any sale or
conveyance of all or substantially all of the property and assets of the Company
to another Person, then each Security then Outstanding shall be convertible from
and after such merger, consolidation, sale or conveyance of property and assets
into the kind and amount of shares of stock or other securities and property
(including cash) receivable upon such consolidation, merger,
129
sale or conveyance by a holder of the number of shares of Common Stock or other
Marketable Securities into which such Securities would have been converted
immediately prior to such consolidation, merger, sale or conveyance, subject to
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article XII (and assuming such holder of Common
Stock or other Marketable Securities failed to exercise his rights of election,
if any, as to the kind or amount of securities, cash or other property
(including cash) receivable upon such consolidation, merger, sale or conveyance
(provided that, if the kind or amount of securities, cash or other property
(including cash) receivable upon such consolidation, merger, sale or conveyance
is not the same for each nonelecting share, then the kind and amount of
securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance for each nonelecting share, shall be
deemed to be the kind and amount so receivable per share by a plurality of the
nonelecting shares or securities)). The Company shall not enter into any of the
transactions referred to in clause (a) or (b) of the preceding sentence unless
effective provision shall be made so as to give effect to the provisions set
forth in this Section 12.04. The provisions of this Section 12.04 shall apply
similarly to successive consolidations, mergers, sales or conveyances.
SECTION 12.05. Notice of Adjustment. Whenever an adjustment in the
Conversion Price with respect to a series of Securities is required:
(1) the Company shall forthwith place on file with the Trustee and any
Conversion Agent for such Securities a certificate of the Treasurer of the
Company, stating the adjusted Conversion Price determined as provided
herein and setting forth in reasonable detail such facts as shall be
necessary to show the reason for and the manner of computing such
adjustment, such certificate to be conclusive evidence that the adjustment
is correct; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be mailed,
first class postage prepaid, by the Company to the Holders of record of
such Outstanding Securities.
130
SECTION 12.06. Notice in Certain Events. In case:
131
(1) of a consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or of
the sale or conveyance to another person or entity or group of persons or
entities acting in concert as a partnership, limited partnership, syndicate
or other group (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of all or substantially all of the property and
assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion Price
pursuant to this Article XII;
then, in each case, the Company shall cause to be filed with the Trustee and the
Agent for the applicable Securities, and shall cause to be mailed, first class
postage prepaid, to the Holders of record of applicable Securities, at least
fifteen (15) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of any
distribution or grant of rights or warrants triggering an adjustment to the
Conversion Price pursuant to this Article XII, or, if a record is not to be
taken, the date as of which the holders of record of Common Stock or other
Marketable Securities entitled to such distribution, rights or warrants are to
be determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Price pursuant to this Article XII is expected to
become effective, and the date as of which it is expected that holders of Common
Stock or other Marketable Securities of record shall be entitled to exchange
their Common Stock or other Marketable Securities for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not affect the
legality or validity of the proceedings described in clause (1), (2) or (3) of
this Section.
SECTION 12.07. Company To Reserve Stock or Other Marketable Securities;
Registration; Listing. (a) The Company shall at all times reserve and keep
available, free from preemptive rights, out of its authorized but unissued
shares of Common Stock or other Marketable Securities, for the purpose of
effecting the conversion of the Securities, such number of its duly authorized
shares of Common Stock or
132
number or principal amount of other Marketable Securities as shall from time to
time be sufficient to effect the conversion of all applicable outstanding
Securities into such Common Stock or other Marketable Securities at any time
(assuming that, at the time of the computation of such number of shares or
securities, all such Securities would be held by a single Holder); provided,
however, that nothing contained herein shall preclude the Company from
satisfying its obligations in respect of the conversion of the Securities by
delivery of purchased shares of Common Stock or other Marketable Securities
which are held in the treasury of the Company. The Company shall from time to
time, in accordance with the laws of the State of Delaware, use its best efforts
to cause the authorized amount of the Common Stock or other Marketable
Securities to be increased if the aggregate of the authorized amount of the
Common Stock or other Marketable Securities remaining unissued and the issued
shares of such Common Stock or other Marketable Securities in its treasury
(other than any such shares reserved for issuance in any other connection) shall
not be sufficient to permit the conversion of all Securities.
(b) If any shares of Common Stock or other Marketable Securities which
would be issuable upon conversion of Securities hereunder require registration
with or approval of any governmental authority before such shares or securities
may be issued upon such conversion, the Company will in good faith and as
expeditiously as possible endeavor to cause such shares or securities to be duly
registered or approved, as the case may be. The Company will endeavor to list
the shares of Common Stock or other Marketable Securities required to be
delivered upon conversion of the Securities prior to such delivery upon the
principal national securities exchange upon which the outstanding Common Stock
or other Marketable Securities is listed at the time of such delivery.
SECTION 12.08. Taxes on Conversion. The Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock or other Marketable
Securities on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any such tax which may be payable in respect of any
transfer involved in the issue or delivery of shares of Common Stock or other
Marketable Securities or the portion, if any, of the Securities which are not so
converted in a name other than that in which the Securities so converted were
registered, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the
133
amount of such tax or has established to the satisfaction of the Company that
such tax has been paid.
SECTION 12.09. Conversion After Record Date. If any Securities are
surrendered for conversion subsequent to the record date preceding an Interest
Payment Date but on or prior to such Interest Payment Date (except Securities
called for redemption on a Redemption Date between such record date and Interest
Payment Date), the Holder of such Securities at the close of business on such
record date shall be entitled to receive the interest payable on such securities
on such Interest Payment Date notwithstanding the conversion thereof. Securities
surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date shall (except in the case of Securities which have
been called for redemption on a Redemption Date within such period) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the Securities being surrendered for conversion. Except
as provided in this Section 12.09, no adjustments in respect of payments of
interest on Securities surrendered for conversion or any dividends or
distributions or interest on the Common Stock or other Marketable Securities
issued upon conversion shall be made upon the conversion of any Securities.
SECTION 12.10. Corporate Action Regarding Par Value of Common Stock. Before
taking any action which would cause an adjustment reducing the applicable
Conversion Price below the then par value (if any) of the shares of Common Stock
or other Marketable Securities deliverable upon conversion of the Securities,
the Company will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock or other Marketable
Securities at such adjusted Conversion Price.
SECTION 12.11. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to this Article is
conclusive.
SECTION 12.12. Trustee's Disclaimer. The Trustee has no duty to determine
when an adjustment under this Article should be made, how it should be made or
what it should be. The Trustee makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
134
Article. Each Conversion Agent other than the Company shall have the same
protection under this Section as the Trustee.
ARTICLE XIII
Convertible Securities
----------------------
SECTION 13.01. Applicability of Certain Provisions to Convertible
Securities. Unless otherwise provided in an indenture supplemental hereto with
respect to Securities of any series as provided by Section 3.01, the provisions
of Articles IV and VIII and of Sections 10.03, 10.04, 10.05, 10.06, 10.07,
10.08, 10.09, 10.10, 10.11 and 10.12 shall not be applicable with respect to
any series of convertible Securities.
135
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
TIME WARNER TELECOM INC., as
Issuer,
by
-------------------------------
Name:
Title: Executive Vice
President & CFO
THE CHASE MANHATTAN BANK,
as Trustee,
by
-------------------------------
Name:
Title: Vice President
