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Exhibit 4.1
XXXXX ADVERTISING COMPANY
and
_______________________________________, as Trustee
_____________________
INDENTURE
Dated as of ___________________, 1998
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TABLE OF CONTENTS
Page
----
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitions . . . . . . . . . . . . . . . . . . 5
Section 1.3 Incorporation by Reference of Trust Indenture Act . . 5
Section 1.4 Rules of Construction . . . . . . . . . . . . . . . . 6
ARTICLE 2.
THE SECURITIES
Section 2.1 Issuable in Series . . . . . . . . . . . . . . . . . 6
Section 2.2 Establishment of Terms of Series of Securities . . . 6
Section 2.3 Execution and Authentication. . . . . . . . . . . . . 9
Section 2.4 Registrar and Paying Agent . . . . . . . . . . . . . 10
Section 2.5 Paying Agent To Hold Assets in Trust . . . . . . . . 10
Section 2.6 Securityholder Lists. . . . . . . . . . . . . . . . . 11
Section 2.7 Transfer and Exchange . . . . . . . . . . . . . . . . 11
Section 2.8 Replacement Securities . . . . . . . . . . . . . . . 12
Section 2.9 Outstanding Securities . . . . . . . . . . . . . . . 12
Section 2.10 Treasury Securities . . . . . . . . . . . . . . . . . 13
Section 2.11 Temporary Securities . . . . . . . . . . . . . . . . 13
Section 2.12 Cancellation . . . . . . . . . . . . . . . . . . . . 13
Section 2.13 Defaulted Interest . . . . . . . . . . . . . . . . . 14
Section 2.14 CUSIP Number . . . . . . . . . . . . . . . . . . . . 14
Section 2.15 Provisions for Global Securities . . . . . . . . . . 14
ARTICLE 3.
REDEMPTION
Section 3.1 Notices to Trustee . . . . . . . . . . . . . . . . . 15
Section 3.2 Selection by Trustee of Securities To Be Redeemed. . 15
Section 3.3 Notice of Redemption . . . . . . . . . . . . . . . . 16
Section 3.4 Effect of Notice of Redemption . . . . . . . . . . . 17
Section 3.5 Deposit of Redemption Price . . . . . . . . . . . . . 17
Section 3.6 Securities Redeemed in Part . . . . . . . . . . . . . 17
ARTICLE 4.
COVENANTS
Section 4.1 Payment of Securities . . . . . . . . . . . . . . . . 18
Section 4.2 SEC Reports . . . . . . . . . . . . . . . . . . . . . 18
Section 4.3 Waiver of Stay, Extension or Usury Laws . . . . . . . 18
Section 4.4 Compliance Certificate. . . . . . . . . . . . . . . . 18
Section 4.5 Payment of Taxes and Other Claims . . . . . . . . . . 19
Section 4.6 Maintenance of Properties and Insurance . . . . . . . 19
Section 4.7 Corporate Existence . . . . . . . . . . . . . . . . . 20
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ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Limitation on Consolidation, Merger and Sale
of Assets . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.2 Successor Person Substituted . . . . . . . . . . . . 21
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default . . . . . . . . . . . . . . . . . . 22
Section 6.2 Acceleration . . . . . . . . . . . . . . . . . . . . 23
Section 6.3 Remedies . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.4 Waiver of Past Defaults and Events of Default . . . . 24
Section 6.5 Control by Majority . . . . . . . . . . . . . . . . . 24
Section 6.6 Limitation on Suits . . . . . . . . . . . . . . . . . 25
Section 6.7 Rights of Holders To Receive Payment . . . . . . . . 25
Section 6.8 Collection Suit by Trustee . . . . . . . . . . . . . 25
Section 6.9 Trustee May File Proofs of Claim . . . . . . . . . . 26
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . 26
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . 27
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . 27
Section 7.2 Rights of Trustee . . . . . . . . . . . . . . . . . . 28
Section 7.3 Individual Rights of Trustee . . . . . . . . . . . . 29
Section 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . 29
Section 7.5 Notice of Default . . . . . . . . . . . . . . . . . . 29
Section 7.6 Reports by Trustee to Holders. . . . . . . . . . . . 29
Section 7.7 Compensation and Indemnity . . . . . . . . . . . . . 30
Section 7.8 Replacement of Trustee . . . . . . . . . . . . . . . 30
Section 7.9 Successor Trustee by Consolidation, Merger
or Conversion . . . . . . . . . . . . . . . . . . . . 31
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . 31
Section 7.11 Preferential Collection of Claims Against Company . . 32
Section 7.12 Paying Agents . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.1 Without Consent of Holders . . . . . . . . . . . . . 32
Section 8.2 With Consent of Holders . . . . . . . . . . . . . . . 33
Section 8.3 Compliance with Trust Indenture Act . . . . . . . . . 34
Section 8.4 Revocation and Effect of Consents . . . . . . . . . . 34
Section 8.5 Notation on or Exchange of Securities . . . . . . . . 35
Section 8.6 Trustee To Sign Amendments, etc. . . . . . . . . . . 35
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.1 Discharge of Indenture . . . . . . . . . . . . . . . 35
Section 9.2 Legal Defeasance . . . . . . . . . . . . . . . . . . 36
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Section 9.3 Covenant Defeasance . . . . . . . . . . . . . . . . . 36
Section 9.4 Conditions to Legal Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . 37
Section 9.5 Deposited Money and U.S. and Foreign Government
Obligations to be Held in Trust; Other Miscellaneous
Provisions . . . . . . . . . . . . . . . . . . . . . 38
Section 9.6 Reinstatement . . . . . . . . . . . . . . . . . . . . 39
Section 9.7 Moneys Held by Paying Agent . . . . . . . . . . . . . 39
Section 9.8 Moneys Held by Trustee . . . . . . . . . . . . . . . 39
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls . . . . . . . . . . . . 40
Section 10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . 40
Section 10.3 Communications by Holders with Other Holders . . . . 41
Section 10.4 Certificate and Opinion as to Conditions Precedent . 41
Section 10.5 Statement Required in Certificate and Opinion . . . . 42
Section 10.6 When Treasury Securities Disregarded . . . . . . . . 42
Section 10.7 Rules by Trustee and Agents . . . . . . . . . . . . . 42
Section 10.8 Business Days; Legal Holidays . . . . . . . . . . . . 42
Section 10.9 Governing Law . . . . . . . . . . . . . . . . . . . . 43
Section 10.10 No Adverse Interpretation of Other Agreements . . . . 43
Section 10.11 No Recourse Against Others . . . . . . . . . . . . . 43
Section 10.12 Successors . . . . . . . . . . . . . . . . . . . . . 43
Section 10.13 Multiple Counterparts . . . . . . . . . . . . . . . . 43
Section 10.14 Table of Contents, Headings, etc. . . . . . . . . . . 43
Section 10.15 Separability . . . . . . . . . . . . . . . . . . . . 43
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N/A
(a)(4) N/A
(a)(5) 7.10
(b) 7.8; 7.10; 10.2
(b)(1) 7.10
(b)(9) 7.10
(c) N/A
311(a) 7.11
(b) 7.11
(c) N/A
312(a) 2.6
(b) 10.3
(c) 10.3
313(a) 7.6
(b)(1) 7.6
(b)(2) 7.6
(c) 7.6
(d) 7.6; 10.2
314(a) 4.2; 4.4; 10.2
(b) N/A
(c)(1) 10.4; 10.5
(c)(2) 10.4; 10.5
(c)(3) N/A
(d) N/A
(e) 10.5
(f) N/A
315(a) 7.1, 7.2
(b) 7.5; 10.2
(c) 7.1
(d) 6.5; 7.1; 7.2
(e) 6.11
316(a)(last sentence) 10.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) 8.2
(b) 6.7
(c) 8.4
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.5; 7.12
318(a) 10.1
-----------------------
N/A means not applicable
Note: This Cross-Reference Table shall not, for any purpose, be deeded to be a
part of the Indenture.
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INDENTURE, dated as of ______________, 1998, among XXXXX ADVERTISING
COMPANY, a Delaware corporation, as Issuer (the "Company") and
_____________________, a ________________ organized under the laws of
_______________________, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series
(the "Securities"), as herein provided, up to such principal amount as may from
time to time be authorized in or pursuant to one or more resolutions of the
Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Board of Directors" means the Board of Directors of the Company or any
committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified pursuant to an
Officers' Certificate to have been duly adopted by the Board of Directors of
the Company and to be in full force and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such Person or any option, warrant or other security convertible
into any of the foregoing.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor and any other primary obligor on
the Securities.
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"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be its Chief Executive Officer or its Chief
Financial Officer.
"Company Request" means any written request signed in the name of the
Company by its Chief Executive Officer, its President, any Vice President, its
Chief Financial Officer or its Treasurer and attested to by the Secretary or
any Assistant Secretary of the Company.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Default" means any event that is, or with the passing of time or giving
of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such Series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act,
until a successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean each
Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, such Persons.
"Dollars" means the currency of the United States of America.
"ECU" means the European Currency Unit as determined by the Commission
of the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of the United States of America.
"Foreign Government Obligations" means with respect to Securities of any
Series that are denominated in a Foreign Currency, (i) direct obligations of
the government that issued or caused to be issued such currency for the payment
of which obligations its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof.
"GAAP" means generally accepted accounting principles consistently
applied as in effect in the United States from time to time.
"Global Security" or "Global Securities" means a Security or Securities,
as the case may be, in the form established pursuant to Section 2.2, evidencing
all or part of a Series of Securities issued to the Depositary for such Series
or its nominee, and registered in the name of such Depositary or nominee.
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"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to any Person,
any indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding any balances that constitute accounts payable or trade
payables, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing indebtedness would appear
as a liability upon a balance sheet of such Person prepared in accordance with
GAAP.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Interest Payment Date" means the stated maturity of an installment of
interest on Securities of any Series.
"Lien" means, with respect to any property or assets of any Person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance,
preference, priority, or other security agreement or preferential arrangement
of any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any Capitalized Lease Obligation, conditional
sales, or other title retention agreement having substantially the same
economic effect as any of the foregoing).
"Maturity Date" when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption, notice of option to elect payment or otherwise.
"Officer" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of the
Company or any other officer designated by the Board of Directors, as the case
may be.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chief Executive Officer, the President or any Vice President, and
the Chief Financial Officer or any Treasurer of such Person that shall comply
with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel which
counsel is reasonably acceptable to the Trustee.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
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"Redemption Date," when used with respect to any Security of a Series to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"SEC" means the United States Securities and Exchange Commission as
constituted from time to time or any successor performing substantially the
same functions.
"Securities" means the securities that are issued under this Indenture,
as amended or supplemented from time to time pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" or "Series of Securities" means each series of debentures,
notes or other debt instruments of the Company created pursuant to Sections 2.1
or 2.2 hereof.
"Significant Subsidiary" means (i) any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such regulation is in effect on the date hereof, or (ii) any group of direct or
indirect Subsidiaries of the Company that, taken together as a group, would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-
X, promulgated pursuant to the Securities Act, as such regulation is in effect
on the date hereof.
"Stated Maturity" means, when used with respect to the Security of any
Series or any installment of interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable, and when used with respect to any
other Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Subsidiary" of any specified Person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which
more than 50% of the total voting power of the Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held, directly or indirectly by such
Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint
venture, association or other business entity, with respect to which such
Person or any of its Subsidiaries has the power to direct or cause the
direction of the management and policies of such entity by contract or
otherwise or if in accordance with GAAP such entity is consolidated with such
Person for financial statement purposes.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section 77aaa-
77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.3 hereof).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"U.S. Government Obligations" means direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
Section 1.2 Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Defined
Term in Section
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"Bankruptcy Law" 6.1
"Business Day" 10.8
"Covenant Defeasance" 9.3
"Custodian" 6.1
"Event of Default" 6.1
"Journal" 10.16
"Judgment Currency" 10.17
"Legal Defeasance" 9.2
"Legal Holiday" 10.8
"Market Exchange Rate" 10.16
"New York Banking Day" 10.17
"Paying Agent" 2.4
"Registrar" 2.4
"Required Currency" 10.17
"Service Agent" 2.4
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part
of this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein,
whether defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular; and
(5) words used herein implying any gender shall apply
to each gender.
ARTICLE 2.
THE SECURITIES
Section 2.1 Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series. All Securities of a Series shall be identical except as
may be set forth in a Board Resolution, a supplemental indenture or an
Officers' Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution. In the case of Securities of a
Series to be issued from time to time, the Board Resolution, Officers'
Certificate or supplemental indenture may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ
between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the
Indenture.
Section 2.2 Establishment of Terms of Series of Securities.
At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of
Subsection 2.2(1) and either as to such Securities within the Series or as to
the Series generally in the case of Subsections 2.2(2) through
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2.2(23) by a Board Resolution, a supplemental indenture or an Officers'
Certificate pursuant to authority granted under a Board Resolution:
(1) the title of the Series (which shall distinguish
the Securities of that particular Series from the Securities of
any other Series);
(2) the price or prices (expressed as a percentage of
the principal amount thereof) at which the Securities of the
Series will be issued;
(3) any limit upon the aggregate principal amount of
the Securities of the Series which may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.7, 2.8, 2.11, 3.6 or 8.5);
(4) the date or dates on which the principal of the
Securities of the Series is payable;
(5) the rate or rates (which may be fixed or variable)
per annum or, if applicable, the method used to determine such
rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at
which the Securities of the Series shall bear interest, if any,
the date or dates from which such interest, if any, shall accrue,
the date or dates on which such interest, if any, shall commence
and be payable and any regular record date for the interest
payable on any interest payment date;
(6) the place or places where the principal of and
interest, if any, on the Securities of the Series shall be
payable, or the method of such payment, if by wire transfer, mail
or other means;
(7) if applicable, the period or periods within which,
the price or prices at which and the terms and conditions upon
which the Securities of the Series may be redeemed, in whole or
in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase the Securities of the Series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
Series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) the dates, if any, on which and the price or prices
at which the Securities of the Series will be repurchased by the
Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;
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(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which the
Securities of the Series shall be issuable;
(11) the forms of the Securities of the Series in bearer
or fully registered form (and, if in fully registered form,
whether the Securities will be issuable as Global Securities);
(12) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the Series
that shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2;
(13) the currency of denomination of the Securities of
the Series, which may be Dollars or any Foreign Currency,
including, but not limited to, the ECU, and if such currency of
denomination is a composite currency other than the ECU, the
agency or organization, if any, responsible for overseeing such
composite currency;
(14) the designation of the currency, currencies or
currency units in which payment of the principal of and interest,
if any, on the Securities of the Series will be made;
(15) if payments of principal of or interest, if any, on
the Securities of the Series are to be made in one or more
currencies or currency units other than that or those in which
such Securities are denominated, the manner in which the exchange
rate with respect to such payments will be determined;
(16) the manner in which the amounts of payment of
principal of or interest, if any, on the Securities of the Series
will be determined, if such amounts may be determined by
reference to an index based on a currency or currencies or by
reference to a commodity, commodity index, stock exchange index
or financial index;
(17) the provisions, if any, relating to any security
provided for the Securities of the Series;
(18) any addition to or change in the Events of Default
which applies to any Securities of the Series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and
payable pursuant to Section 6.2;
(19) any addition to or change in the covenants set
forth in Articles 4 or 5 which applies to Securities of the
Series;
(20) any other terms of the Securities of the Series
(which terms shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 8.1, but which may
modify or delete any provision of this Indenture insofar as it
applies to such Series); and
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(21) any depositories, interest rate calculation agents,
exchange rate calculation agents or other agents with respect to
Securities of such Series if other than those appointed herein;
and
(22) the terms and conditions, if any, upon which the
Securities and any guarantees thereof shall be subordinated in
right of payment to other indebtedness of the Company or any
guarantor; and
(23) the form and terms of any guarantee of the
Securities.
All Securities of any one Series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, supplemental indenture or
Officers' Certificate referred to above, and the authorized principal amount of
any Series may not be increased to provide for issuances of additional
Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers' Certificate.
Section 2.3 Execution and Authentication.
The Securities shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the
Company.
Such signature may be either manual or facsimile. The Company's seal
may be impressed, affixed, imprinted or reproduced on the Securities and may be
in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the Board
Resolution, supplemental indenture hereto or Officers' Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Each Security shall be dated the date
of its authentication unless otherwise provided by a Board Resolution, a
supplemental indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall
have received and (subject to Section 7.2) shall be fully protected in relying
on: (a) the Board Resolution,
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supplemental indenture hereto or Officers' Certificate establishing the form of
the Securities of that Series or of Securities within that Series and the terms
of the Securities of that Series or of Securities within that Series, (b) an
Officers' Certificate complying with Section 10.4, and (c) an Opinion of
Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such Series: (a) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (b) if the Trustee in
good faith by its board of directors or trustees, executive committee or a
trust committee of directors and/or vice-presidents shall determine that such
action would expose the Trustee to personal liability to Holders of any then
outstanding Series of Securities.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Securities. An authenticating agent may
authenticate Securities whenever the Trustee may do so. Any appointment shall
be evidenced by instrument signed by an authorized officer of the Trustee, a
copy of which shall be furnished to the Company. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
Section 2.4 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served ("Service Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. Neither the Company nor any Affiliate of the Company
may act as Paying Agent. The Company may change any Paying Agent, Registrar or
co-registrar without notice to any Securityholder.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee
shall act as such. The Company hereby appoints the Trustee as the initial
Registrar, Paying Agent and Service Agent for each Series unless another
Registrar, Paying Agent or Service Agent, as the case may be, is appointed
prior to the time Securities of that Series are first issued.
Section 2.5 Paying Agent To Hold Assets in Trust.
The Trustee as Paying Agent shall, and the Company shall require each
Paying Agent other than the Trustee to agree in writing that each Paying Agent
shall hold in trust for the benefit of the Holders of any Series of Securities
or the Trustee all assets held by the Paying Agent for the payment of principal
of, or interest on, such Series of Securities (whether such
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assets have been distributed to it by the Company or any other obligor on such
Series of Securities), and the Company and the Paying Agent shall notify the
Trustee in writing of any Default by the Company (or any other obligor on such
Series of Securities) in making any such payment. The Company at any time may
require a Paying Agent to distribute all assets held by it to the Trustee and
account for any assets disbursed and the Trustee may at any time during the
continuance of any payment default with respect to any Series of Securities,
upon written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered
by the Company to the Paying Agent, the Paying Agent shall have no further
liability for such assets.
Section 2.6 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee as of each Record Date and
on or before each related Interest Payment Date, and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders of
each Series of Securities.
Section 2.7 Transfer and Exchange.
When Securities of a Series are presented to the Registrar with a
request to register the transfer thereof, the Registrar shall register the
transfer as requested if the requirements of applicable law are met and, when
such Securities of a Series are presented to the Registrar with a request to
exchange them for an equal principal amount of other authorized denominations
of Securities of the same Series, the Registrar shall make the exchange as
requested. To permit transfers and exchanges, upon surrender of any Security
for registration of transfer at the office or agency maintained pursuant to
Section 2.4 hereof, subject to the provisions of this Section 2.6, the Company
shall execute and the Trustee shall authenticate Securities at the Registrar's
request.
Notwithstanding any other provision of this Section 2.7, unless and
until it is exchanged in whole or in part for definitive Securities, a Global
Security may not be transferred except as a whole by the Depositary to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
If (i) the Depositary is at any time unwilling, unable or ineligible to
continue as Depositary and a successor Depositary is not appointed by the
Company within 60 days of the date the Company is so informed in writing or
becomes aware of the same, or (ii) an Event of Default has occurred and is
continuing, the Company promptly will execute and deliver to the Trustee
definitive Securities, and the Trustee, upon receipt of a Company Request for
the authentication and delivery of such definitive Securities (which the
Company will promptly execute and deliver to the Trustee), will authenticate
and deliver definitive Securities, without charge, in an aggregate principal
amount equal to the principal amount of the outstanding Global Securities, in
exchange for and upon surrender of all such Global Securities.
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In any exchange provided for in the preceding paragraph, the Company
will execute and the Trustee will authenticate and deliver definitive
Securities in the authorized denominations provided by Section 2.3.
Upon the exchange of a Global Security for definitive Securities, such
Global Security shall be canceled by the Trustee. Definitive Securities issued
in exchange for Global Securities pursuant to this Section 2.7 shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration or transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar or a co-
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or a co-
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
Any exchange or transfer shall be without charge, except that the
Company may require payment by the Holder of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation to a transfer or
exchange, but this provision shall not apply to any exchange pursuant to
Sections 2.11, 3.6 or 8.5 hereof. The Trustee shall not be required to
register transfers of Securities of any Series or to exchange Securities of any
Series for a period of 15 days before selection for redemption of such
Securities. The Trustee shall not be required to exchange or register
transfers of Securities of any Series called or being called for redemption in
whole or in part, except the unredeemed portion of such Security being redeemed
in part.
Section 2.8 Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security
if the Trustee's requirements are met. An indemnity bond may be required by
the Company or the Trustee that is sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced. The Company may charge
such Holder for its reasonable, out-of-pocket expenses in replacing a Security,
including reasonable fees and expenses of counsel. Every replacement Security
is an additional obligation of the Company.
Section 2.9 Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section 2.9 as not outstanding.
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If a Security is replaced pursuant to Section 2.8 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
until the Company and the Trustee receive proof satisfactory to each of them
that the replaced Security is held by a bona fide purchaser. A mutilated
Security ceases to be outstanding upon surrender of such Security and
replacement thereof pursuant to Section 2.8.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Securities payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases
to accrue.
Subject to Section 10.6, a Security does not cease to be outstanding
solely because the Company or an Affiliate holds the Security.
Section 2.10 Treasury Securities
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.11 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form, and shall carry all rights, of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities presented to it.
Section 2.12 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. At the
direction of the Trustee, the Registrar or the Paying Agent, and no one else,
shall cancel and at the written request of the Company, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.12.
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Section 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.1 hereof, to the persons who are Securityholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the special record date, the Company shall mail or cause
to be mailed to each Securityholder, with a copy to the Trustee, a notice that
states the special record date, the payment date, and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
Section 2.14 CUSIP Number.
The Company in issuing the Securities may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities.
Section 2.15 Provisions for Global Securities.
(a) A Board Resolution, a supplemental indenture hereto or an
Officers' Certificate shall establish whether the Securities of a Series shall
be issued in whole or in part in the form of one or more Global Securities and
the Depositary for such Global Securities or Securities.
(b) Notwithstanding any provisions to the contrary contained
in Section 2.7 of the Indenture and in addition thereto, any Global Security
shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities
registered in the names of Holders other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered under the
Exchange Act, and, in either case, the Company fails to appoint a successor
Depositary within 90 days of such event, (ii) the Company executes and delivers
to the Trustee an Officers' Certificate to the effect that such Global Security
shall be so exchangeable or (iii) an Event of Default with respect to the
Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depositary shall direct in writing in an aggregate principal amount equal to
the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.15(b), a Global Security may
not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary, by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a
successor Depositary.
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(c) Any Global Security issued hereunder shall bear a legend
in substantially the following form:
"This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such a successor Depositary."
(d) The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture.
(e) Notwithstanding the other provisions of this Indenture,
unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the
Holder thereof.
(f) Except as provided in Section 2.15(e), the Company, the
Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global
Security as shall be specified in a written statement of the Depositary with
respect to such Global Security, for purposes of obtaining any consents,
declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.
ARTICLE 3.
REDEMPTION
Section 3.1 Notices to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or may covenant to redeem and
pay the Series of Securities or any part thereof prior to the Stated Maturity
thereof at such time and on such terms as provided for in such Securities. If
a Series of Securities is redeemable and the Company elects to redeem such
Securities of a Series, it shall notify the Trustee of the Redemption Date and
the principal amount of Securities to be redeemed at least 30 days (unless a
shorter notice shall be satisfactory to the Trustee) but not more than 60 days
before the Redemption Date. Any such notice may be canceled at any time prior
to notice of such redemption being mailed to any Holder and shall thereby be
void and of no effect.
Section 3.2 Selection by Trustee of Securities To Be Redeemed.
Unless otherwise indicated for a particular Series of Securities by a
Board Resolution, a supplemental indenture or an Officers' Certificate, if
fewer than all of the Securities of a Series
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are to be redeemed, the Trustee shall select the Securities of a Series to be
redeemed pro rata, by lot or by any other method that the Trustee considers
fair and appropriate and, if such Securities are listed on any securities
exchange, by a method that complies with the requirements of such exchange.
The Trustee shall make the selection from Securities of a Series
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities of a Series in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions of
the principal of Securities of a Series that have denominations larger than
$1,000. Securities of a Series and portions of them it selects shall be in
amounts of $1,000 or, with respect to Securities of any Series issuable in
other denominations pursuant to Section 2.2(10), the minimum principal
denomination for each Series and integral multiples thereof. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
Section 3.3 Notice of Redemption.
Unless otherwise indicated for a particular Series by Board Resolution,
a supplemental indenture hereto or an Officers' Certificate, at least 30 days,
and no more than 60 days, before a Redemption Date, the Company shall mail, or
cause to be mailed, a notice of redemption by first-class mail to each Holder
of Securities to be redeemed at his or her last address as the same appears on
the registry books maintained by the Registrar.
The notice shall identify the Securities to be redeemed (including the
CUSIP number(s) thereof, if any) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Security of a Series is being redeemed in
part, the portion of the principal amount of such Security of a
Series to be redeemed and that, after the Redemption Date and
upon surrender of such Security of a Series, a new Security or
Securities in principal amount equal to the unredeemed portion
will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities of a Series called for redemption
must be surrendered to the Paying Agent to collect the redemption
price;
(6) that, unless the Company defaults in making the
redemption payment, interest on the Securities of a Series called
for redemption ceases to accrue on and after the Redemption Date,
and the only remaining right of the
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Holders of such Securities is to receive payment of the
redemption price upon surrender to the Paying Agent of the
Securities redeemed; and
(7) if fewer than all the Securities of a Series are to
be redeemed, the identification of the particular Securities of a
Series (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Securities of a Series to be
redeemed and the aggregate principal amount of Securities of a
Series to be outstanding after such partial redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
Section 3.4 Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.3 is mailed,
Securities of a Series called for redemption become due and payable on the
Redemption Date and at the redemption price, plus interest, if any, accrued to
(but not including) the Redemption Date. Upon surrender to the Trustee or
Paying Agent, such Securities of a Series shall be paid at the redemption
price, plus accrued interest, if any, to (but not including) the Redemption
Date, provided that if the Redemption Date is after a regular interest payment
record date and on or prior to the next Interest Payment Date, the accrued
interest shall be payable to the Holder of the redeemed Securities registered
on the relevant record date.
Section 3.5 Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date other than
Securities or portions thereof called for redemption on that date which have
been delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Securities called for redemption
shall have been made available in accordance with the preceding paragraph and
the Company and the Paying Agent are not prohibited from paying such moneys to
Holders, the Securities called for redemption will cease to accrue interest and
the only right of the Holders of such Securities will be to receive payment of
the redemption price of and, subject to the proviso in Section 3.4, accrued and
unpaid interest on such Securities to the Redemption Date. If any Security
called for redemption shall not be so paid, interest will be paid, from the
Redemption Date until such redemption payment is made, on the unpaid principal
of the Security and any interest not paid on such unpaid principal, in each
case, at the rate and in the manner provided in the Securities.
Section 3.6 Securities Redeemed in Part.
Upon surrender of a Security of a Series that is redeemed in part, the
Trustee shall authenticate for a Holder a new Security of the same Series equal
in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE 4.
COVENANTS
Section 4.1 Payment of Securities.
The Company shall pay the principal of and interest, if any, on each
Series of Securities on the dates and in the manner provided in such Securities
and this Indenture.
An installment of principal or interest shall be considered paid on the
date it is due if the Trustee or Paying Agent holds on that date money
designated for and sufficient to pay such installment and is not prohibited
from paying such money to the Holders pursuant to the terms of this Indenture
or otherwise.
The Company shall pay interest on overdue principal, and overdue
interest, to the extent lawful, at the rate specified in the Series of
Securities.
Section 4.2 SEC Reports.
The Company will deliver to the Trustee and Holders of Securities within
15 days after the filing of the same with the SEC, copies of the quarterly and
annual report and of the information documents and other reports, if any, which
the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the SEC, to the extent permitted, and provide the Trustee,
Holders of each Series of Securities and prospective holders of each Series of
Securities with such quarterly and annual reports and such information,
documents and other reports specified in Section 13 and 15(d) of the Exchange
Act. The Company will also comply with the other provisions of TIA Section
314(a).
Section 4.3 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
they will not at any time insist upon, or plead (as a defense or otherwise) or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company from paying all or any portion of the principal of, premium, if any,
and/or interest on the Securities as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that they may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Section 4.4 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company, an Officers' Certificate
which complies with TIA Section 314(a)(4) stating that a review of the
activities of the Company and its Subsidiaries during such
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fiscal year or fiscal quarter, as the case may be, has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
the best of his or her knowledge each has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge and what action each is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of
or interest, if any, on the Securities is prohibited or if such event has
occurred, a description of the event and what action each is taking or proposes
to take with respect thereto.
(b) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Securities, the
Company shall deliver to the Trustee an Officers' Certificate specifying such
event, notice or other action within five Business Days of its becoming aware
of such occurrence and what action the Company is taking or proposes to take
with respect thereto.
Section 4.5 Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Significant
Subsidiaries or properties of it or any of its Significant Subsidiaries and
(ii) all lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of it or any of its Significant
Subsidiaries; 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 if the amount, applicability or validity thereof is being contested in
good faith by appropriate proceedings and an adequate reserve has been
established therefor to the extent required by GAAP.
Section 4.6 Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used in, or useful
to the conduct of, its business or the business of any of its Significant
Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in its judgment may be necessary, so that the business carried
on in connection therewith may be properly and advantageously conducted at all
times unless the failure to so maintain such properties (together with all
other such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and its Significant
Subsidiaries, taken as a whole; provided, however, that nothing in this Section
4.6 shall prevent the Company or any Significant Subsidiary from discontinuing
the operation or maintenance of any of such properties, or disposing of any of
them, if such discontinuance or disposal is in the good faith judgment of the
Board of Directors of the Company or the Significant Subsidiary
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concerned, as the case may be, desirable in the conduct of the business of the
Company or such Significant Subsidiary, as the case may be, and is not
disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for
itself and each of its Significant Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
reasonable, good faith opinion of the Company are adequate and appropriate for
the conduct of the business of the Company and such Significant Subsidiaries in
a prudent manner, 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 shall be customary, in the good
faith judgment of the Company, for corporations similarly situated in the
industry, unless the failure to provide such insurance (together with all other
such failures) would not have a material adverse effect on the financial
condition or results of operations of the Company and its Significant
Subsidiaries, taken as a whole.
Section 4.7 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, and the corporate, partnership or other existence of each
Significant Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company and of
each Significant Subsidiary and the rights (charter and statutory), licenses
and franchises of the Company and its Significant Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any
of its Significant Subsidiaries, if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Significant Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.8 Maintenance of Office or Agency.
The Company shall maintain an office or agency where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee as set forth in
Section 10.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such
designation or rescission and of any change in the location of any such other
office or agency.
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The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company.
ARTICLE 5.
SUCCESSOR CORPORATION
Section 5.1 Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions), to any Person or Persons, and
the Company will not permit any of its Significant Subsidiaries to enter into
any such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company or the Company and its Significant
Subsidiaries, taken as a whole, to any other Person or Persons, unless at the
time of and after giving effect thereto (i) either (A) if the transaction or
series of transactions is a merger or consolidation, the Company shall be the
surviving Person of such merger or consolidation, or (B) the Person formed by
such consolidation or into which the Company or such Significant Subsidiary is
merged or to which the properties and assets of the Company or such Significant
Subsidiary, as the case may be, are transferred (any such surviving person or
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume by a
supplemental indenture executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all the obligations of the Company
under the Securities of a Series and this Indenture, and in each case, this
Indenture shall remain in full force and effect; and (ii) immediately before
and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with or in
respect of such transaction or series of transactions), no Default or Event of
Default shall have occurred and be continuing.
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.1, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer and the supplemental
indenture in respect thereto comply with this Section 5.1 and that all
conditions precedent herein provided for relating to such transaction or
transactions have been complied with.
Section 5.2 Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Significant Subsidiary in
accordance with Section 5.1 above, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every
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right and power of, the Company under this Indenture with the same effect as if
such successor corporation had been named as the Company herein, and thereafter
(except with respect to any such transfer which is a lease) the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
"Events of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events, unless in the establishing
Board Resolution, supplemental indenture or Officers' Certificate, it is
provided that such Series shall not have the benefit of said Event of Default:
(1) there is a default in the payment of any principal
of, or premium, if any, on the Securities when the same becomes
due and payable at maturity, upon acceleration, redemption or
otherwise;
(2) there is a default in the payment of any interest
on any Security of a Series when the same becomes due and payable
and the Default continues for a period of 30 days;
(3) the Company defaults in the observance or
performance of any other covenant in the Securities of a Series
or this Indenture for 45 days after written notice from the
Trustee or the Holders of not less than 25% in the aggregate
principal amount of the Securities of such Series then
outstanding;
(4) there is a default or are defaults under one or
more agreements, instruments, mortgages, bonds, debentures or
other evidences of Indebtedness under which the Company or any
Significant Subsidiary of the Company then has outstanding
Indebtedness in excess of $10 million, individually or in the
aggregate, and either (a) such Indebtedness is already due and
payable in full or (b) such default or defaults have resulted in
the acceleration of the maturity of such Indebtedness;
(5) a court of competent jurisdiction enters a final
judgment or judgments which can no longer be appealed for the
payment of money in excess of $10 million (not covered by
insurance) against the Company or any Significant Subsidiary and
such judgment remains undischarged for a period of 60 consecutive
days during which a stay of enforcement of such judgment shall
not be in effect;
(6) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not paying its debts as they
become due;
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of
the property of the Company or any Significant Subsidiary,
or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60
days; or
(8) any other Event of Default provided with respect to
Securities of that Series, which is specified in a Board
Resolution, a supplemental indenture hereto or an Officers'
Certificate, in accordance with Section 2.2(18).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee may withhold notice of any Default (except in payment of
principal or premium, if any, or interest on the Securities) to the Holders of
the Securities of any Series in accordance with Section 7.5.
Section 6.2 Acceleration.
If an Event of Default with respect to Securities of any Series at the
time outstanding (other than an Event of Default arising under Section 6.1(6)
or (7)) occurs and is continuing, the Trustee by written notice to the Company,
or the Holders of not less than 25% in aggregate principal amount of the
Securities of that Series then outstanding may by written notice to the Company
and the Trustee declare that the entire principal amount of all the Securities
of that
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Series then outstanding plus accrued and unpaid interest to the date of
acceleration are immediately due and payable, in which case such amounts shall
become immediately due and payable; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the outstanding Securities of that Series may rescind and annul such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid and (iii) if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.1(6) or (7) with respect to the
Company occurs, such principal, premium, if any, and interest amount with
respect to all of the Securities of that Series shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Securities of that Series.
Section 6.3 Remedies.
If an Event of Default with respect to Securities of any Series at the
time outstanding occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal
of, or premium, if any, and interest on the Securities of that Series or to
enforce the performance of any provision of the Securities of that Series or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities of that Series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults and Events of Default.
Subject to Sections 6.2, 6.7 and 8.2 hereof, the Holders of a majority
in principal amount of the Securities of any Series then outstanding have the
right to waive any existing Default or Event of Default with respect to such
Series or compliance with any provision of this Indenture or the Securities of
such Series. Upon any such waiver, such Default with respect to such Series
shall cease to exist, and any Event of Default with respect to such Series
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
Section 6.5 Control by Majority.
The Holders of a majority in principal amount of the Securities of any
Series then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this
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Indenture with respect to such Series. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder or that may involve the Trustee in personal liability; provided
that the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 6.6 Limitation on Suits.
Subject to Section 6.7 below, a Securityholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the
Securities of a Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of
that Series;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities of such Series then outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense to be incurred in compliance with such
request;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity;
and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60 day period by the
Holders of a majority in aggregate principal amount of the
Securities of such Series then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security of a Series to receive payment of principal of, or
premium, if any, and interest of the Security of such Series on or after the
respective due dates expressed in the Security of such Series, or to bring suit
for the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.8 Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.1(1) or (2) hereof with respect to Securities of any
Series at the time outstanding occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company (or any other obligor on the Securities of that Series) for the whole
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amount of unpaid principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate then borne by the Securities of that Series, and such further amounts as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.9 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 the Securityholders
allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), any of their respective creditors or any of their
respective property and shall be entitled and empowered to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and any custodian in any such judicial proceeding is hereby
authorized by each Securityholder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities of a Series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceedings.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Securityholders for amounts then due and unpaid for
principal, premium, if any, and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10.
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Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof or a suit by Holders of more than 10% in
principal amount of the Securities of a Series then outstanding.
ARTICLE 7.
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the same circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture against the
Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture but, in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts.
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(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Sections 6.2 and 6.5
hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it.
(e) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (d) of this Section 7.1 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by the law.
(g) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of care set
forth in paragraphs (a), (b), (c) and (d) of this Section 7.1 with respect to
the Trustee.
Section 7.2 Rights of Trustee.
Subject to Section 7.1 hereof:
(1) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document reasonably
believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact
or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel, or
both, which shall conform to the provisions of Section 10.5
hereof. The Trustee shall be protected and shall not be liable
for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed by it with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably believes
to be authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel as to
matters of law shall be full and complete authorization and
protection from liability in respect of any action taken, omitted
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or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(6) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby.
(7) The Trustee shall not be deemed to have knowledge
of any fact or matter unless such fact or matter is known to a
Responsible Officer of the Trustee.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliate thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11 hereof.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the sale of Securities or any money paid to the
Company pursuant to the terms of this Indenture and it shall not be responsible
for any statement in the Securities other than its certificate of
authentication.
Section 7.5 Notice of Default.
If a Default or an Event of Default occurs and is continuing with
respect to the Securities of any Series and if it is known to the Trustee, the
Trustee shall mail to each Securityholder of the Securities of that Series
notice of the Default or the Event of Default, as the case may be, within 30
days after it occurs or, if later, after a Responsible Officer of the Trustee
has knowledge of such Default or Event of Default. Except in the case of a
Default or an Event of Default in payment of the principal of, or premium, if
any, or interest on any Security of any Series, the Trustee may withhold the
notice if and so long as the Board of Directors of the Trustee, the executive
committee or any trust committee of such board and/or its Responsible Officers
in good faith determine(s) that withholding the notice is in the interests of
the Securityholders of that Series.
Section 7.6 Reports by Trustee to Holders.
If and to the extent required by the TIA, within 60 days after May 15 of
each year, commencing the May 15 following the date of this Indenture, the
Trustee shall mail to each
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Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b) and
313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and any stock exchange on which the Securities of
that Series are listed. The Company shall promptly notify the Trustee when the
Securities of any Series are listed on any stock exchange, and the Trustee
shall comply with TIA Section 313(d).
Section 7.7 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any provision of law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any and all loss or liability incurred by it in connection with the
acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity.
However, the failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations. Notwithstanding the foregoing, the
Company need not reimburse the Trustee for any expense or indemnify it against
any loss or liability incurred by the Trustee through its negligence or bad
faith. To secure the payment obligations of the Company in this Section 7.7,
the Trustee shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee except such money or
property held in trust to pay principal of and interest on particular
Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(6) or (7) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.7, the term "Trustee" shall include any
trustee appointed pursuant to Article 9.
Section 7.8 Replacement of Trustee.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding
Securities of any Series may remove the Trustee with respect to that Series by
notifying the removed Trustee in writing and may appoint a successor Trustee
with respect to that Series with the Company's written
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consent, which consent shall not be unreasonably withheld. The Company may
remove the Trustee with respect to that Series at its election if:
(1) the Trustee fails to comply with Section 7.10
hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(3) a Custodian or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee with respect to any Series of Securities for any reason, the
Company shall promptly notify each Holder of such event and shall promptly
appoint a successor Trustee.
If a successor Trustee with respect to the Securities of one or more
Series does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least 10%
in principal amount of the outstanding Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of one or more Series
fails to comply with Section 7.10 hereof, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee with respect to one or more Series shall,
subject to its rights under Section 7.7 hereof, transfer all property held by
it as Trustee with respect to such Series to the successor Trustee, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee with respect to such Series shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee with
respect to the Securities of one or more Series shall mail notice of its
succession to each Securityholder of such Series.
Section 7.9 Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
subject to Section 7.10 hereof, the successor corporation without any further
act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), (2) and (5) in every respect. The
Trustee shall have a combined capital and surplus
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of at least $100,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b),
including the provision in Section 310(b)(1).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 7.12 Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(1) that it will hold all sums held by it as agent for
the payment of principal of, or premium, if any, or interest on,
the Securities (whether such sums have been paid to it by the
Company or by any obligor on the Securities) in trust for the
benefit of Holders of the Securities or the Trustee;
(2) that it will at any time during the continuance of
any Event of Default, upon written request from the Trustee,
deliver to the Trustee all sums so held in trust by it together
with a full accounting thereof; and
(3) that it will give the Trustee written notice within
three (3) Business Days of any failure of the Company (or by any
obligor on the Securities) in the payment of any installment of
the principal of, premium, if any, or interest on, the Securities
when the same shall be due and payable.
ARTICLE 8.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.1 Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series
without notice to or consent of any Securityholder:
(1) to comply with Section 5.1 hereof;
(2) to provide for uncertificated Securities in
addition to certificated Securities;
(3) to comply with any requirements of the SEC under
the TIA;
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(4) to cure any ambiguity, defect or inconsistency, or
to make any other change that does not adversely affect the
rights of any Securityholder;
(5) to provide for the issuance of and establish the
form and terms and conditions of Securities of any Series as
permitted by this Indenture; or
(6) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more Series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into any such supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
Section 8.2 With Consent of Holders
The Company, when authorized by a Board Resolution, and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series with
the written consent of the Holders of not less than a majority in aggregate
principal amount of the outstanding Securities of such Series affected by such
amendment or supplement without notice to any Securityholder. The Holders of
not less than a majority in aggregate principal amount of the outstanding
Securities of each such Series affected by such amendment or supplement may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Securities of such Series without notice to any
Securityholder. Subject to Section 8.4, without the consent of each
Securityholder affected, however, an amendment, supplement or waiver, including
a waiver pursuant to Section 6.4, may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver to this Indenture
or the Securities;
(2) reduce the rate of or change the time for payment
of interest on any Security;
(3) reduce the principal or change the Stated Maturity
of any Security or reduce the amount of, or postpone the date
fixed for, the payment of any sinking fund or analogous
obligation;
(4) make any Security payable in money other than that
stated in the Security;
(5) change the amount or time of any payment required
by the Securities or reduce the premium payable upon any
redemption of the Securities, or change the time before which no
such redemption may be made;
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(6) waive a Default or Event of Default in the payment
of the principal of or interest, if any, on any Security (except
a rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the
outstanding Securities of such Series and a waiver of the payment
default that resulted from such acceleration);
(7) waive a redemption payment with respect to any
Security or change any of the provisions with respect to the
redemption of any Securities;
(8) make any changes in Sections 6.4 or 6.7 hereof or
this sentence of Section 8.2; or
(9) take any other action otherwise prohibited by this
Indenture to be taken without the consent of each holder affected
thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of
the consent of the Securityholders as aforesaid and upon receipt by the Trustee
of the documents described in Section 8.6 hereof, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 8.4 Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Security is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Security or portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Security. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Security or portion of a
Security, if the Trustee receives the notice of revocation before the date the
amendment, supplement, waiver or other action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record
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date is fixed, then, notwithstanding the preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), and only
such Persons, shall be entitled to consent to such amendment, supplement, or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder, unless it makes a change
described in any of clauses (1) through (9) of Section 8.2 hereof. In that
case the amendment, supplement, waiver or other action shall bind each Holder
of a Security who has consented to it and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting
Holder's Security; provided that any such waiver shall not impair or affect the
right of any Holder to receive payment of principal of and interest on a
Security, on or after the respective due dates expressed in such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
Section 8.5 Notation on or Exchange of Securities
If an amendment, supplement, or waiver changes the terms of a Security
of any Series, the Trustee may request the Holder of such Security to deliver
it to the Trustee. In such case, the Trustee shall place an appropriate
notation on such Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for such Security shall issue and the Trustee shall authenticate a new
security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect of
such amendment supplement or waiver.
Section 8.6 Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.1 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture.
The Company may not sign an amendment or supplement until the Board of
Directors of the Company approves it.
ARTICLE 9.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.1 Discharge of Indenture.
The Company may terminate its obligations under the Securities of any
Series and this Indenture with respect to such Series, except the obligations
referred to in the last paragraph of this Section 9.1, if there shall have been
canceled by the Trustee or delivered to the Trustee for cancellation all
Securities of such Series theretofore authenticated and delivered
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(other than any Securities of such Series that are asserted to have been
destroyed, lost or stolen and that shall have been replaced as provided in
Section 2.8 hereof) and the Company has paid all sums payable by it hereunder
or deposited all required sums with the Trustee.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities of such
Series and this Indenture except for those surviving obligations specified
below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.7, 9.5 and 9.6 hereof shall survive.
Section 9.2 Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Securities of any Series on the date the
conditions set forth in Section 9.4 below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Securities of such Series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall, subject
to Section 9.6 hereof, execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of outstanding Securities of
such Series to receive solely from the trust funds described in Section 9.4
hereof and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on the Securities of such Series
when such payments are due, (B) the Company's obligations with respect to the
Securities of such Series under Sections 2.4, 2.5, 2.6, 2.7, 2.8, 2.9 and 4.8
hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee
hereunder (including claims of, or payments to, the Trustee under or pursuant
to Section 7.7 hereof) and (D) this Article 9. Subject to compliance with this
Article 9, the Company may exercise its option under this Section 9.2 with
respect to the Securities of any Series notwithstanding the prior exercise of
its option under Section 9.3 below with respect to the Securities of such
Series.
Section 9.3 Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company shall be released from its obligations under Sections 4.2 through 4.8
hereof, inclusive, and Section 5.1 hereof with respect to the outstanding
Securities of any Series on and after the date the conditions set forth in
Section 9.4 hereof are satisfied (hereinafter, "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section or portion thereof, whether
directly or indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any such
specified Section or portion thereof to any other provision herein or in any
other document, but the remainder of this Indenture and the Securities of any
Series shall be unaffected thereby.
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Section 9.4 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.2 or
Section 9.3 hereof to the outstanding Securities of a Series:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 hereof who shall
agree to comply with the provisions of this Article 9 applicable
to it) as funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities, (A)
money in an amount, or (B) U.S. Government Obligations or Foreign
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of,
premium, if any, and accrued interest on the outstanding
Securities of such Series at the maturity date of such principal,
premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest
selected in accordance with the terms of this Indenture and of
the Securities of such Series;
(2) no Event of Default or Default with respect to the
Securities of such Series shall have occurred and be continuing
on the date of such deposit, or shall have occurred and be
continuing at any time during the period ending on the 91st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under
any Bankruptcy Law applicable to the Company in respect of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall
not cause the Trustee to have a conflicting interest for purposes
of the TIA with respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute default
under any other agreement or instrument to which the Company is a
party or by which it is bound;
(5) the Company shall have delivered to the Trustee an
Opinion of Counsel stating that, as a result of such Legal
Defeasance or Covenant Defeasance, neither the trust nor the
Trustee will be required to register as an investment company
under the Investment Company Act of 1940, as amended;
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(6) in the case of an election under Section 9.2 above,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling to
the effect that or (ii) there has been a change in any applicable
Federal income tax law with the effect that, and such opinion
shall confirm that, the Holders of the outstanding Securities of
such Series or persons in their positions will not recognize
income, gain or loss for Federal income tax purposes solely as a
result of such Legal Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner, including as
a result of prepayment, and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.3
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
outstanding Securities of such Series will not recognize income,
gain or loss for Federal income tax purposes as a result of such
Covenant Defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not
occurred;
(8) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
Legal Defeasance under Section 9.2 above or the Covenant
Defeasance under Section 9.3 hereof (as the case may be) have
been complied with;
(9) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit under clause (1)
was not made by the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or
others; and
(10) the Company shall have paid or duly provided for
payment under terms mutually satisfactory to the Company and the
Trustee all amounts then due to the Trustee pursuant to Section
7.7 hereof.
Section 9.5 Deposited Money and U.S. and Foreign Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
All money, U.S. Government Obligations and Foreign Government
Obligations (including the proceeds thereof) deposited with the Trustee
pursuant to Section 9.4 hereof in respect of the outstanding Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal,
premium, if any, and accrued interest, but such money need not be segregated
from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations and
Foreign Government Obligations deposited pursuant to Section 9.4 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Securities.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money, U.S. Government Obligations or Foreign Government Obligations held by it
as provided in Section 9.4 hereof which, in the opinion of a nationally-
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Section 9.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money, U.S.
Government Obligations or Foreign Government Obligations in accordance with
Section 9.1, 9.2, 9.3 or 9.4 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article 9 until
such time as the Trustee or Paying Agent is permitted to apply all such money,
U.S. Government Obligations or Foreign Government Obligations, as the case may
be, in accordance with Section 9.1, 9.2, 9.3 or 9.4 hereof; provided, however,
that if the Company has made any payment of principal of, premium, if any, or
accrued interest on any Securities because of the reinstatement of their
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, U.S. Government
Obligations or Foreign Government Obligations held by the Trustee or Paying
Agent.
Section 9.7 Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture, all
moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.1 hereof, to the Company, and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.8 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of the principal of, or premium, if
any, or interest on any Security that are not applied but remain unclaimed by
the Holder of such Security for two years after the date upon which the
principal of, or premium, if any, or interest on such Security shall have
respectively become due and payable shall be repaid to the Company upon Company
Request, or if such moneys are then held by the Company in trust, such moneys
shall be released from such trust; and the Holder of such Security entitled to
receive
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such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or any such Paying Agent, before being required to
make any such repayment, may, at the expense of the Company, either mail to
each Securityholder affected, at the address shown in the register of the
Securities maintained by the Registrar or cause to be published once a week for
two successive weeks, in a newspaper published in the English language,
customarily published each Business Day and of general circulation in the City
of New York, New York, a notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing or publication, any unclaimed balance of such moneys then
remaining will be repaid to the Company. After payment to the Company or the
release of any money held in trust by the Company, Securityholders entitled to
the money must look only to the Company for payment as general creditors unless
applicable abandoned property law designates another person.
ARTICLE 10.
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 10.2 Notices.
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
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If to the Trustee:
The Company or the Trustee by written notice to the others may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and
five (5) calendar days after mailing if sent by registered or certified mail,
postage prepaid (except that a notice of change of address shall not be deemed
to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first-class mail, postage prepaid, at his address shown on the
register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 10.3 Communications by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA Section
312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series
or any other Series. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
Section 10.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.5 below) stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 10.5 below) stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
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Section 10.5 Statement Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it
or he has made such examination or investigation as is necessary
to enable it or him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such covenant or condition has been complied with.
Section 10.6 When Treasury Securities Disregarded.
In determining whether the Holders of the required aggregate principal
amount of the Securities of any Series have concurred in any direction, waiver
or consent, the Securities of any Series owned by the Company or any other
obligor on such Securities or by any Affiliate of any of them shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee actually knows are so owned shall
be so disregarded. Securities of such Series so owned which have been pledged
in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Securities of such Series and that the pledgee is not the Company or any other
obligor upon the Securities of such Series or any Affiliate of any of them.
Section 10.7 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at meetings of
Securityholders. The Registrar and Paying Agent may make reasonable rules for
their functions.
Section 10.8 Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York
or the Commonwealth of Massachusetts.
If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue
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for the intervening period.
Section 10.9 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES 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 10.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 10.11 No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creations. Each Securityholder by
accepting a Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Securities.
Section 10.12 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind their respective successors. All agreements of the Trustee, any
additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 10.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 10.14 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.15 Separability.
Each provision of this Indenture shall be considered separable and if
for any reason
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any provision which is not essential to the effectuation of the basic purpose
of this Indenture or the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 10.16 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2
of this Indenture with respect to a particular Series of Securities, whenever
for purposes of this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities of all Series
or all Series affected by a particular action at the time outstanding and, at
such time, there are outstanding Securities of any Series which are denominated
in a coin or currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be outstanding for
the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes
of this Section 10.16, "Market Exchange Rate" shall mean the noon Dollar buying
rate in New York City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not available for
any reason with respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question or, in
the case of ECUs, in Luxembourg or such other quotations or, in the case of
ECUs, rates of exchange as the Trustee, upon consultation with the Company,
shall deem appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of Securities of a
Series denominated in currency other than Dollars in connection with any action
taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.
Section 10.17 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or
interest or other amount on the Securities of any Series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which
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in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to
the extent that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable, and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
XXXXX ADVERTISING COMPANY
By:
--------------------------------
Name:
Its:
[Name of Trustee]
By:
--------------------------------
Name:
Its:
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