EXHIBIT 4.2
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TCI COMMUNICATIONS, INC.
AND
,
TRUSTEE
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INDENTURE
DATED AS OF , 199
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SENIOR SUBORDINATED DEBT SECURITIES
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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)................................................. 7.08; 7.10; 12.02
(c)................................................. N.A.
311 (a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312 (a)................................................. 2.07
(b)................................................. 12.03
(c)................................................. 12.03
313 (a)................................................. 7.06
(b)(1).............................................. N.A.
(b)(2).............................................. 7.06
(c)................................................. 12.02
(d)................................................. 7.06
314 (a)................................................. 4.02; 4.03; 12.02
(b)................................................. N.A.
(c)(1).............................................. 12.04
(c)(2).............................................. 12.04
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 12.05
(f)................................................. N.A.
315 (a)................................................. 7.01(b)
(b)................................................. 7.05; 12.02
(c)................................................. 7.01(a)
(d)................................................. 7.01(c)
(e)................................................. 6.11
316 (a)(last sentence).................................. 12.06
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N.A.
(b)................................................. 6.07
317 (a)(1).............................................. 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.06
318 (a)................................................. 12.01
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N.A. means Not Applicable.
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TABLE OF CONTENTS
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Section Heading Page
ARTICLE ONE
Definitions and Incorporation by Reference
1.01. Definitions...................................................... 7
1.02. Other Definitions................................................ 9
1.03. Incorporation by Reference of Trust Indenture Act................ 9
1.04. Rules of Construction............................................ 9
ARTICLE TWO
The Securities
2.01. Forms Generally and Dating....................................... 9
2.02. Amount Unlimited; Issuable in Series............................. 10
2.03. Denominations.................................................... 12
2.04. Execution and Authentication..................................... 12
2.05. Registrar, Paying Agent and Conversion Agent..................... 14
2.06. Paying Agent to Hold Money and Securities in Trust............... 14
2.07. Securityholder Lists............................................. 14
2.08. Transfer and Exchange............................................ 14
2.09. Replacement Securities........................................... 16
2.10. Outstanding Securities........................................... 16
2.11. Temporary Securities............................................. 17
2.12. Cancellation..................................................... 17
2.13. Payment of Interest; Defaulted Interest.......................... 17
2.14. Persons Deemed Owners............................................ 18
2.15. Securities in Global Form........................................ 18
ARTICLE THREE
Redemption
3.01. Applicability of Article......................................... 19
3.02. Notices to Trustee............................................... 19
3.03. Selection of Securities to be Redeemed........................... 19
3.04. Notice of Redemption............................................. 20
3.05. Effect of Notice of Redemption................................... 20
3.06. Deposit of Redemption Price...................................... 20
3.07. Securities Redeemed in Part...................................... 21
3.08. Conversion Arrangement on Call For Redemption.................... 21
ARTICLE FOUR
Covenants
4.01. Payment of Securities............................................ 21
4.02. SEC Reports...................................................... 21
4.03. Compliance Certificate........................................... 22
4.04. Corporate Existence.............................................. 22
4.05. Securities Senior to Junior Subordinated Debt.................... 22
4.06. Limitation on Subordinated Debt Senior to the Securities......... 23
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Section Heading Page
ARTICLE FIVE
Successor Corporation
5.01. When Company May Merge, etc...................................... 23
ARTICLE SIX
Defaults and Remedies
6.01. Events of Default................................................ 23
6.02. Acceleration..................................................... 24
6.03. Other Remedies................................................... 24
6.04. Waiver of Existing Defaults...................................... 25
6.05. Control by Majority.............................................. 25
6.06. Limitation on Suits.............................................. 25
6.07. Rights of Holders to Receive Payment and to Convert.............. 25
6.08. Collection Suit by Trustee....................................... 26
6.09. Trustee May File Proofs of Claim................................. 26
6.10. Priorities....................................................... 26
6.11. Undertaking for Costs............................................ 26
ARTICLE SEVEN
Trustee
7.01. Duties of Trustee................................................ 26
7.02. Rights of Trustee................................................ 27
7.03. Individual Rights of Trustee..................................... 27
7.04. Trustee's Disclaimer............................................. 27
7.05. Notice of Defaults............................................... 28
7.06. Reports by Trustee to Holders.................................... 28
7.07. Compensation and Indemnity....................................... 28
7.08. Replacement of Trustee........................................... 28
7.09. Successor Trustee by Merger, etc................................. 29
7.10. Eligibility; Disqualification.................................... 29
7.11. Preferential Collection of Claims Against Company................ 29
ARTICLE EIGHT
Discharge of Indenture
8.01. Termination of Company's Obligations............................. 29
8.02. Application of Trust Fund........................................ 30
8.03. Repayment to Company............................................. 30
ARTICLE NINE
Amendments, Supplements and Waivers
9.01. Without Consent of Holders....................................... 30
9.02. With Consent of Holders.......................................... 31
9.03. Compliance with Trust Indenture Act.............................. 32
9.04. Revocation and Effect of Consents................................ 32
9.05. Notation on or Exchange of Securities............................ 32
9.06. Trustee to Sign Amendments, etc. ................................ 32
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Section Heading Page
ARTICLE TEN
Subordination
10.01. Securities Subordinated to Senior Debt........................... 32
10.02. Company Not to Make Payments with Respect to Securities in
Certain Circumstances........................................... 33
10.03. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company........... 33
10.04. Securityholders to be Subrogated to Right of Holders of Senior
Debt............................................................ 34
10.05. Obligation of the Company Unconditional.......................... 34
10.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice......................................................... 35
10.07. Application by Trustee of Monies or U.S. Government Obligations
Deposited with It............................................... 35
10.08. Subordination Rights Not Impaired by Acts or Omissions of Company
or Holders of Senior Debt....................................... 36
10.09. Securityholders Authorize Trustee to Effectuate Subordination of
Securities..................................................... 36
10.10. Right of Trustee to Hold Senior Debt............................. 36
10.11. Article Ten Not to Prevent Events of Default..................... 36
ARTICLE ELEVEN
Conversion
11.01. Applicability of Article......................................... 36
11.02. Conversion Privilege............................................. 37
11.03. Conversion Procedure............................................. 37
11.04. Fractional Shares................................................ 38
11.05. Taxes on Conversion.............................................. 38
11.06. Company to Provide Stock......................................... 38
11.07. Adjustment for Change in Capital Stock........................... 38
11.08. Adjustment for Rights Issue...................................... 39
11.09. Adjustments for Other Distributions.............................. 40
11.10. Voluntary Adjustment............................................. 40
11.11. Certain Definitions.............................................. 41
11.12. When Adjustment May Be Deferred.................................. 42
11.13. When Adjustment Is Not Required.................................. 42
11.14. Notice of Adjustment............................................. 42
11.15. Notice of Certain Transactions................................... 43
11.16. Consolidation, Merger or Sale of the Company..................... 43
11.17. Company Determination Final...................................... 43
11.18. Trustee's Disclaimer............................................. 43
11.19. Simultaneous Adjustments......................................... 43
ARTICLE TWELVE
Miscellaneous
12.01. Trust Indenture Act Controls..................................... 44
12.02. Notices.......................................................... 44
12.03. Communication by Holders with Other Holders...................... 44
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Section Heading Page
12.04. Certificate and Opinion as to Conditions Precedent............... 44
12.05. Statements Required in Certificate or Opinion.................... 45
12.06. When Treasury Securities Disregarded............................. 45
12.07. Rules by Trustee and Agents...................................... 45
12.08. Legal Holidays................................................... 45
12.09. Governing Law.................................................... 45
12.10. No Adverse Interpretation of Other Agreements.................... 45
12.11. No Recourse Against Others....................................... 45
12.12. Successors....................................................... 46
12.13. Duplicate Originals.............................................. 46
12.14. Table of Contents, Headings, etc. ............................... 46
Signatures................................................................ 47
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INDENTURE dated as of , 199 , between TCI COMMUNICATIONS, INC., a
Delaware corporation ("Company"), and ("Trustee").
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured senior
subordinated debentures, notes, bonds or other evidences of subordinated
indebtedness ("Securities"), to be issued in one or more series as provided in
this Indenture.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the respective Holders from time to time of
Securities or of series thereof:
ARTICLE ONE
Definitions and Incorporation by Reference
Section 1.01. Definitions.
Affiliate of any person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person.
Agent means any Registrar, Paying Agent, co-Registrar or Conversion Agent.
See Section 2.05.
Board of Directors means the Board of Directors of the Company or any
authorized committee thereof.
Business Day means any day which is not a Legal Holiday.
Class B Stock means the Class B Common Stock, $1.00 par value, of the
Company as it exists on the date of this Indenture and stock of any other
class into which such Class B Common Stock may thereafter have been changed.
Company means TCI Communications, Inc., a Delaware corporation, until a
successor replaces it pursuant to the applicable provisions of this Indenture
and thereafter means the successor.
Convertible Securities means any or all options, warrants, securities and
rights, except the Series B TCI Group Common Stock and the Securities, which
are convertible into or exercisable or exchangeable for Parent Stock or which
otherwise entitle the holder thereof to subscribe for, purchase or otherwise
acquire Parent Stock.
Default means any event which is, or after notice or passage of time or both
would be, an Event of Default.
Holder or Securityholder means the person in whose name a Security is
registered on the Registrar's books.
Indenture means this Indenture as amended or supplemented from time to time
and, unless the context indicates otherwise, shall include the form and terms
of a particular series of Securities established as contemplated hereunder.
interest, when used with respect to an Original Issue Discount Security
which by its terms bears interest only after maturity or upon default in any
other payment due on such Security, means interest payable after maturity or
upon such a default, as the case may be.
Interest Payment Date means the date, if any, specified in the Securities of
any series as the fixed date on which any installment of interest on the
Securities of that series is due and payable.
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Officer means the Chairman of the Board, the President, any Vice President,
the Treasurer or the Secretary of the Company.
Officers' Certificate means a certificate signed by two Officers or by an
Officer and an Assistant Treasurer or an Assistant Secretary of the Company
and delivered to the Trustee. See Sections 12.04 and 12.05.
Opinion of Counsel means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee. See Sections 12.04 and 12.05.
original issue discount of any debt security, including any Original Issue
Discount Security, means the difference between the principal amount of such
debt security and the initial issue price of such debt security (as set forth,
in the case of an Original Issue Discount Security, on the face of such
Security).
Original Issue Discount Security means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon
acceleration of the maturity thereof pursuant to Section 6.02.
Parent means Tele-Communications, Inc., a Delaware corporation, and any
successor thereof.
Parent Stock means the Tele-Communications, Inc. Series A TCI Group Common
Stock, $1.00 par value, as it exists on the date of this Indenture and any
other capital stock into which such Series A TCI Group Common Stock may
thereafter have been changed.
principal of a debt security, including any Security, means the amount
(including, without limitation, if and to the extent applicable, any premium
and, in the case of an Original Issue Discount Security, any accrued original
issue discount, but excluding interest) that is payable with respect to such
debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Company, upon any purchase or exchange at the option of the
Company or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
principal amount of a debt security, including any Security, means the
principal amount as set forth on the face of such debt security.
Regular Record Date means the date, if any, specified in the Securities of
any series as the record date for the determination of Securityholders to whom
interest is payable on the next succeeding Interest Payment Date.
SEC means the Securities and Exchange Commission.
Securities means the Securities that are issued from time to time in one or
more series under this Indenture as such Securities are amended or
supplemented from time to time.
Series B TCI Group Common Stock means the Tele-Communications, Inc. Series B
TCI Group Common Stock, $1.00 par value, as it exists on the date of this
Indenture and any other capital stock into which such Series B TCI Group
Common Stock may thereafter have been changed.
Subsidiary means a corporation a majority of whose voting stock is owned by
the Company and/or one or more Subsidiaries. Voting stock is capital stock
having voting power under ordinary circumstances to elect directors.
TIA means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)77aaa-77bbbb)
as in effect on the date of this Indenture, except as provided in Section
9.03.
Trustee means the party named as such in this Indenture until a successor
replaces it and thereafter means the successor and if at any time there is
more than one such party, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
Trust Officer means an officer or assistant officer in the Corporate Trust
Administration department of the Trustee assigned by the Trustee to administer
its corporate trust matters.
United States means the United States of America.
U.S. Government Obligations means direct obligations of, or obligations
entitled to the full faith and credit of, the United States of America.
8
Section 1.02. Other Definitions.
DEFINED IN
TERM SECTION
Average Market Price.......................................... 11.11
Bankruptcy Law................................................ 6.01
Code.......................................................... 9.01
Conversion Agent.............................................. 2.05
current market price.......................................... 11.11
Custodian..................................................... 6.01
Debt.......................................................... 10.01
Determination Date............................................ 11.11
Event of Default.............................................. 6.01
Ex-Dividend Date.............................................. 11.11
Junior Subordinated Debt...................................... 4.05
Legal Holiday................................................. 12.08
Paying Agent.................................................. 2.05
Registrar..................................................... 2.05
Senior Debt................................................... 10.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision 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 security holder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any other
obligor thereon.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires;
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in effect on
the date of this Indenture;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural include
the singular.
ARTICLE TWO
The Securities
Section 2.01. Forms Generally and Dating.
The Securities of each series may be issued in whole or in part in the form
of one or more global Securities as shall be specified as contemplated by
Section 2.02. The Securities of each series (including any temporary
9
global Securities) shall be in one of the forms established from time to time
by or pursuant to a resolution of the Board of Directors or in or pursuant to
one or more indentures supplemental hereto, which shall set forth the
information required by Section 2.02. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or by a resolution of the Board of
Directors and may have such notations, legends or endorsements as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required by law, stock exchange rule or usage. The
Company shall approve the form or forms of the Securities and any notation,
legend or endorsement on them. If the form or forms of Securities of any series
is established by action taken pursuant to a resolution of the Board of
Directors or indenture supplemental hereto, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
written order of the Company contemplated by Section 2.04 for the
authentication and delivery of such Securities.
Each Security shall be dated the date of its authentication. The form of the
Trustee's certificate of authentication to be borne by the Securities shall be
substantially as follows:
CERTIFICATE OF AUTHENTICATION
The undersigned certifies that this is one of the Securities of the series
designated herein referred to in the within-mentioned Indenture.
,
as Trustee
By___________________________________
Authorized Officer
Section 2.02. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors or
established in or pursuant to one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of 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 2.08, 2.09, 2.11, 3.07, or 9.05 and except for
any Securities which pursuant to Section 2.04 are deemed not to have been
authenticated and delivered hereunder);
(3) (A) whether any of the Securities of the series are to be issuable in
global form and, if so, (i) the identity of the depositary with respect to
any such global Security and (ii) whether beneficial owners of interests in
any such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and denomination,
and, if so, the circumstances under which and the manner in which any such
exchanges may occur, if other than as specified in Section 2.08; (B) if any
of the Securities of the series are to be issuable in global form, the date
as of which any global Security shall be
10
dated (if other than the date of original issuance of the first of such
Securities to be issued); and (C) if Securities of the series are to be
issuable in definitive form (whether upon original issue, upon exchange of
a temporary Security of such series, or in exchange for a beneficial
ownership interest in a permanent global Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, or if Securities of the series are initially issuable in
temporary global form and if owners of beneficial interests therein may
exchange such interest for an interest in a permanent global Security only
upon receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and/or terms of such certificates,
documents or conditions;
(4) the date or dates (and whether fixed or extendible) on which the
principal of Securities of the series is payable;
(5) the rate or rates at which Securities of the series shall bear
interest, or the method of determining the same, if any, the date or dates
from which such interest shall accrue, the Interest Payment Dates and the
Regular Record Dates;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable;
(7) any provisions relating to the issuance of Securities of such series
at an original issue discount (including, without limitation, the issue
price thereof, the rate or rates at which such original issue discount
shall accrue, if any, and the date or dates from or to which or period or
periods during which such original issue discount shall accrue at such rate
or rates);
(8) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the series may be
redeemed or otherwise purchased, in whole or in part, at the option of the
Company, pursuant to any sinking fund or otherwise (including, without
limitation, the form or method or payment thereof if other than in cash);
(9) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Securityholder thereof and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation (including,
without limitation, the form or method of payment thereof if other than in
cash);
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02 or provable in bankruptcy pursuant to Section 6.09, or, if applicable,
which is convertible in accordance with Article Eleven;
(12) any Events of Default with respect to the Securities of a particular
series in lieu of or in addition to those set forth herein and the remedies
therefor;
(13) the obligation, if any, of the Company to permit the conversion of
Securities of such series into Parent Stock and the terms and conditions
upon which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, the conversion period and
any other provision in addition to or in lieu of those set forth in this
Indenture relative to such obligation); and
(14) any other terms of a particular series and any other provisions
expressing or referring to the terms and conditions upon which the
Securities of that series are to be issued under the Indenture, which terms
and provisions are not in conflict with the provisions of this Indenture;
provided, however, that the addition to or subtraction from or variation of
Articles Four, Five, Six, Eight and Eleven (and Sections 1.01 and 1.02,
insofar as they relate to the definition of certain terms as used in such
Articles) with regard to the Securities of a particular series shall not be
deemed to constitute a conflict with the provisions of those Articles.
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise so provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the Securities of a series are established by action
taken pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee with an Officers' Certificate setting forth the terms
or the manner of determining the terms of the Securities of such series. With
respect to Securities of a series which are not to be issued at one time, such
resolution of the Board of Directors or action may provide general terms or
parameters for Securities of such series and provide either that the specific
terms of particular Securities of such series shall be specified in a written
order of the Company or that such terms shall be determined by the Company or
its agents in accordance with a written order of the Company as contemplated by
the proviso clause of the fourth paragraph of Section 2.04.
Section 2.03. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
2.02. In the absence of any such provisions with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 2.04. Execution and Authentication.
Two Officers shall sign the Securities for the Company by facsimile
signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds the office at
the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be
valid for any purpose until the Trustee manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture. Notwithstanding the
foregoing, if any Security shall have been duly authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
2.12 together with a written statement (which need not comply with Section
12.04 and 12.05 and need not be accompanied by an Opinion of Counsel) stating
that such Security has not been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed not to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, and the Trustee shall authenticate
and deliver said Securities to or upon the written order of the Company, signed
by two Officers or by an Officer and an Assistant Treasurer of the Company,
without any further action by the Company. Such written order shall specify the
date on which said Securities shall be authenticated; provided, however, that
if not all the Securities of a series are to be issued at one time and if the
resolution of the Board of Directors or indenture supplemental hereto
establishing such series as contemplated by Sections 2.01 and 2.02 shall so
permit, such written order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and for determining the form or terms of
particular Securities of such series including, but not limited to, interest
rate, maturity date, date of issuance and date from which interest shall
accrue.
If the form or forms or terms of the Securities of the series have been
established in or pursuant to one or more resolutions of the Board of Directors
or indentures supplemental hereto as permitted by Sections 2.01 and
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2.02, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(1) if the form or forms of such Securities has been established by or
pursuant to a resolution of the Board of Directors or indenture
supplemental hereto, that such form or forms has been established in
conformity with the provisions of the Indenture;
(2) if the terms of such Securities have been established by or pursuant
to a resolution of the Board of Directors or indenture supplemental hereto,
that such terms have been established in conformity with the provisions of
the Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equitable
principles;
provided, however, that, with respect to Securities of a series which are not
to be issued at one time, the Trustee shall be entitled to receive such Opinion
of Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (2) and
(3) above may state, respectively,
(a) that, when the terms of such Securities shall have been established
pursuant to a written order of the Company or pursuant to such procedures
as may be specified from time to time by a written order of the Company,
all as contemplated by and in accordance with a resolution of the Board of
Directors or an Officers' Certificate pursuant to a resolution of the Board
of Directors or indenture supplemental hereto, as the case may be, such
terms will have been established in conformity with the provisions of this
Indenture; and
(b) that such Securities, when (i) executed by the Company, (ii)
completed, authenticated and delivered by the Trustee in accordance with
this Indenture, (iii) issued and delivered by the Company and (iv) paid
for, all as contemplated by and in accordance with the aforesaid written
order of the Company or specified procedures, as the case may be, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and general equitable principles.
Notwithstanding the provisions of Sections 2.01, 2.02, 12.04 and this
Section, if all the Securities of a series are not to be originally issued at
one time, the resolution of the Board of Directors or indenture supplemental
hereto, the certified copy of the record of action taken pursuant to such
resolution or supplemental indenture, the Officers' Certificate, the written
order of the Company and any other documents otherwise required pursuant to
such Sections need not be delivered to or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued; provided, however, that any subsequent request by the Company to
the Trustee to authenticate Securities of such series shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements, made in the Officers' Certificate delivered pursuant to Section
12.04 at or prior to authentication of the first such Security shall be true
and correct on the date thereof.
The Trustee shall have the right to decline to authenticate and make
available for delivery any Securities under this Section if the issuance of
such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
With respect to Securities of a series which are not all issued at one time,
the Trustee may conclusively rely, as to the authorization by the Company of
any of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel,
Officers' Certificate
13
and other documents delivered pursuant to Sections 2.01, 2.02, 12.04 and this
Section, as applicable, at or prior to the time of the first authentication of
Securities of such series unless and until such opinion, certificate or other
documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series which are not all issued
at one time, the Trustee shall be entitled to assume that the Company's
instructions to authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or commission having
jurisdiction over the Company.
Section 2.05. Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Securities of each
series may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities of each series may be
presented for payment ("Paying Agent") and an office or agency where Securities
of each series that is convertible may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Securities of each series
issued hereunder and of their transfer and exchange. The Company may have one
or more co-Registrars (provided that there shall be only one register, which
shall be maintained by the principal Registrar), one or more additional paying
agents and one or more additional conversion agents with respect to any series.
The term "Paying Agent" includes any additional paying agent and the term
"Conversion Agent" includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall promptly notify the
Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act
as such.
The Company initially appoints the Trustee as Registrar and Paying Agent for
each series and a Conversion Agent for any series that is convertible.
Section 2.06. Paying Agent to Hold Money and Securities in Trust.
Subject to Section 10.07, each Paying Agent shall hold in trust for the
benefit of Securityholders of the relevant series or the Trustee all money and
securities held by the Paying Agent for the payment of any amount in respect of
the Securities of such series, and shall notify the Trustee of any default by
the Company in making any such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate such money and securities and hold them as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money and securities held by it to the Trustee and account for any fund or
securities disbursed. Upon doing so the Paying Agent shall have no further
liability for the money or securities.
Section 2.07. 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. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before either (1) April 1 and October 1 in each year in
the case of Original Issue Discount Securities of any series which by their
terms do not bear interest prior to maturity (other than upon a default in any
payment upon such a Security) or (2) the Interest Payment Date for the
Securities of any other series, but in no event less frequently than semi-
annually, 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.
Section 2.08. Transfer and Exchange.
Where a Security is presented to the Registrar or a co-Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements for such transfer are met. Where Securities are
presented in the Registrar or a co-Registrar with a request to exchange them
for an equal aggregate principal amount of Securities of the same series of
other authorized denominations, the Registrar shall make the exchange
14
as requested if its requirements for such exchange are met. The Registrar shall
require, among other things, that any Security presented or surrendered for
transfer or exchange be duly endorsed, or be accompanied by appropriate
transfer documents duly executed, by the Holder thereof or his attorney duly
authorized in writing. To permit transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. Any exchange or transfer
shall be without charge, except that the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Registrar need not transfer or exchange any Security selected for
redemption or purchase (except, in the case of Securities to be redeemed or
purchased in part, the portion thereof not to be redeemed or purchased) or any
Security in respect of which a notice requiring the purchase or redemption
thereof by the Company at the option of the Holder has been given and not
withdrawn by the Holder thereof in accordance with the terms of such Securities
(except, in the case of Securities to be so purchased or redeemed in part, the
portion thereof not to be so purchased or redeemed), or transfer or exchange
Securities of any particular series during a period of 15 days before a
selection of Securities of such series to be redeemed.
Except as otherwise provided with respect to the Securities of any series as
contemplated by Section 2.02, a global Security may be exchanged only as
provided below in this Section.
If at any time the depositary with respect to a global Security representing
all or a portion of the Securities of or within a series notifies the Company
that it is unwilling, unable or ineligible to continue as such depositary, the
Company shall appoint a successor depositary with respect to such Securities.
Unless otherwise provided with respect to a series of Securities as
contemplated by Section 2.02, if a successor depositary is not so appointed by
the Company within 90 days after the Company receives such notice, the Company
will execute and the Trustee, upon receipt of a written order of the Company as
contemplated by Section 2.04 for the authentication and delivery of definitive
Securities of such series (or, if such written order has previously been
delivered, then upon receipt of written instructions from the person or persons
specified in such written order), will authenticate and deliver Securities of
such series in definitive form equal in aggregate principal amount to the
principal amount of the global Security or Securities representing such series
in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute and the Trustee, upon receipt of a written order
of the Company as contemplated by Section 2.04 for the authentication and
delivery of definitive Securities of such series (or, if such written order has
previously been delivered, then upon receipt of written instructions from the
person or persons specified in such written order), will authenticate and
deliver Securities of such series in definitive form equal in aggregate
principal amount to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
If a global Security is otherwise exchangeable as specified by the Company
pursuant to Section 2.02(3) with respect to a series of Securities, the
depositary with respect to a global Security representing all or a portion of
the Securities of or within such series may surrender such global Security to
the Trustee, as the Company's agent for such purpose, to be exchanged in whole
or in part for Securities of such series in definitive form in the manner and
under the circumstances so specified and on such terms as are acceptable to the
Company and such depositary. In such event, the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery:
(i) to each Person specified by such depositary a new Security or
Securities of the same series and of like tenor, of any authorized form and
denomination as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial interest in the
global Security; and
(ii) unless endorsement of the surrendered global Security as
contemplated by Section 2.15 or another procedure is specified for the
Securities of such series as contemplated by Section 2.02, to such
depositary a new global Security in a denomination equal to the difference,
if any, between the principal amount of the
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surrendered global Security and the aggregate principal amount of
Securities delivered pursuant to clause (i) above in exchange for
beneficial interests in such surrendered global Security.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee will authenticate and deliver Securities
in definitive registered form in authorized denominations.
Upon the exchange of a global Security for Securities in definitive form,
such global Security shall be cancelled by the Trustee, unless endorsement of
the surrendered global Security as contemplated by Section 2.15 or another
procedure is specified for the Securities of such series as contemplated by
Section 2.02. Securities issued in exchange for a global Security pursuant to
this Section shall be registered in such names and in such authorized
denominations as the depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
If a Security is issued in exchange for any portion of a global Security
after the close of business at the office or agency where such exchange occurs
(i) on any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) on any special
record date and before the opening of business at such office or agency on the
related date for payment of defaulted interest, interest or defaulted interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Section 2.09. Replacement Securities
If a mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
are met. If required, such Holder shall furnish an indemnity bond 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 for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
In case any such lost, destroyed or wrongfully-taken Security has become or
is about to become due and payable, or is about to be purchased by the Company
pursuant to any provision of the Securities of such series providing for the
purchase thereof at the option of the Holder or the Company, the Company in its
discretion may, instead of issuing a new Security, pay or purchase such
Security.
Section 2.10. Outstanding Securities
Securities outstanding at any time are all Securities authenticated by the
Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section as not being outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
16
If the Paying Agent holds on a redemption date or maturity date or on the
Business Day following a date on which Securities of such series are to be
purchased by the Company pursuant to any provision thereof providing for such
purchase at the option of the Holder or the Company, money (or securities if
permitted by the terms of such Securities) in trust or, if the Company, acting
as its own Paying Agent, sets aside and segregates money (or securities if
permitted by the terms of such Securities) in trust, sufficient to pay
Securities payable on that date, then on and after that date such Securities
cease to be outstanding and interest, if any (and original issue discount, if
Original Issue Discount Securities) on them ceases to accrue, unless the
Trustee or the Paying Agent is restricted under Article Ten in applying such
money.
Section 2.11 Temporary Securities.
Until a permanent global Security or definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities of any series shall be substantially in the
form of definitive Securities of such series, 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 of the same series. Until so
exchanged the temporary Securities of any series shall in all respect be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 2.12. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation, including Securities authenticated which the Company has not
issued and sold. The Company, Paying Agent and Conversion Agent shall forward
to the Trustee any Securities surrendered to them for transfer, exchange,
payment, redemption, purchase by the Company pursuant to any provision thereof
providing for such purchase at the option of the Holder, or conversion. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment, redemption, purchase, conversion or cancellation, and may
dispose of cancelled Securities as the Company directs. Except as otherwise
provided in the resolution of the Board of Directors or indenture supplemental
hereto establishing such series as contemplated by Section 2.02, the Company
may not issue new Securities of a series to replace Securities of the same
series that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.13. Payment of Interest; Defaulted Interest.
Interest (except defaulted interest) on the Securities of any series which is
payable on any Interest Payment Date shall be paid to the persons who are
Holders of such series at the close of business on the Regular Record Date for
such interest payment. At the option of the Company, payment of interest on any
Security may be made by check mailed to the Holder's registered address.
If the Company defaults in a payment of interest on the Securities of any
series on any Interest Payment Date, it shall pay the defaulted interest to the
persons who are Securityholders of such series at the close of business on a
subsequent special record date. The Company shall fix the record date and
payment date. At least 15 days before the record date, the Company shall mail
to each Securityholder of such series a notice that states the record date, the
payment date and the amount of defaulted interest to be paid. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to
be paid on each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Paying Agent an amount
of money equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Paying Agent
for such deposit prior to the date of the proposed payment. The Company may pay
defaulted interest in any other lawful manner.
Unless otherwise provided with respect to the Securities of any series as
contemplated by Section 2.02, in the case of any Security of any series which
is converted after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security which is due and
payable prior to such Interest
17
Payment Date), interest which is due and payable on such Interest Payment Date
shall be payable on such Interest Payment Date notwithstanding such conversion,
and such interest shall be paid to the Holder in whose name that Security is
registered at the close of business on such Regular Record Date.
Section 2.14. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any Agent may treat the person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 2.13) interest on
such Security and for all other purposes whatsoever, and neither the Company,
the Trustee nor any Agent shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such global Security, and such depositary (or its nominee, if such global
Security is registered in the name of a nominee) may be treated by the Company,
the Trustee, and any Agent as the owner of such global Security for all
purposes whatsoever. None of the Company, the Trustee, or any Agent will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any Agent from giving effect
to any written certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such depositary (or its nominee) as Holder of such global Security.
Section 2.15. Securities in Global Form.
If the Company shall establish pursuant to Section 2.02 that the Securities
of or within a series are to be issued in whole or in part in global form, then
the Company shall execute, and the Trustee shall, in accordance with Section
2.04 and the written order of the Company contemplated thereby, authenticate
and deliver one or more global Securities in temporary or permanent form that
(i) shall be registered in the name of the depositary for such global Security
or Securities or the nominee of such depositary, (ii) shall be delivered by the
Trustee to such depositary or pursuant to such depositary's instructions, and
(iii) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive form,
this Security may not be transferred except as a whole by the depositary to a
nominee of 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
successor depositary." Each depositary designated pursuant to Section 2.02 for
a global Security in registered form must be, to the extent required by
applicable law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation, at the time of its designation and at all times that it serves as
depositary. Notwithstanding clause (14) of Section 2.02 and the provisions of
Section 2.03, any such global Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be increased or decreased
to reflect exchanges. Any endorsement of a Security in a global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of outstanding Securities represented thereby shall be made in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the written order of the Company to be delivered to the
Trustee pursuant to Section 2.04. Subject to the provisions of Section 2.04
and, if applicable, Section 2.11, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable written order of
the Company. If a written order of the Company pursuant to Section 2.04 has
been, or simultaneously is, delivered, any instructions with respect to a
Security in global form shall be in writing but need not comply with Sections
12.04 and 12.05 and need not be accompanied by an Opinion of Counsel.
18
The provisions of the last sentence of the third paragraph of Section 2.04
shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Sections 12.04 and 12.05 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby, together with the written
statement contemplated by the last sentence of the third paragraph of Section
2.04.
ARTICLE THREE
Redemption
Section 3.01. Applicability of Article.
Securities of any series which are redeemable before their stated maturity at
the election of the Company or through the operation of any sinking fund for
the requirement of Securities of such series shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.02 for Securities of any series) in accordance with this Article.
Section 3.02. Notices to Trustee.
If the Company elects to redeem all or less than all the Securities of any
series, it shall notify the Trustee of the redemption date, the principal
amount of Securities to be redeemed, the specific provision of the Securities
pursuant to which the Securities being called for redemption are being redeemed
and the redemption price. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction. If the Company wants to make any permitted optional sinking fund
payment, it shall notify the Trustee of the principal amount of the Securities
to be redeemed.
The Company (1) may deliver outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which (i) have been redeemed or otherwise purchased either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities or (ii) have been converted pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment required to be made pursuant to the terms of the Securities of such
series as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
The Company shall notify the Trustee of its intention to so reduce the amount
of such sinking fund payment, the amount of the reduction and the basis for it.
The Company shall deliver to the Trustee with such notice any Securities to be
credited for such purpose that it has not previously delivered to the Trustee
for cancellation.
The Company shall give each notice and Officers' Certificate provided for in
this Section at least 60 days before the redemption date (unless a shorter
notice shall be satisfactory to the Trustee or is otherwise specified as
contemplated by Section 2.02 for Securities of any series).
Section 3.03. Selection of Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 2.02 for Securities
of any series, if less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected from
Securities of the same series outstanding not previously called for redemption
by lot or by such method as the Trustee considers fair and appropriate (and in
such manner as complies with applicable requirements of any stock
19
exchange on which Securities of such series are listed) and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series that have denominations
larger than the minimum authorized denomination for Securities of that series.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. If any Security
selected for partial redemption is converted in part after such selection but
before the termination of the conversion right with respect to the portion of
the Security so selected, the converted portion of such Security shall be
deemed (so far as may be practicable) to be the portion selected for
redemption.
Section 3.04. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date (unless a
shorter notice is specified as contemplated by Section 2.02 for Securities of
any series), the Company shall mail a notice of redemption by first-class mail
to each Holder of Securities of the series to be redeemed.
The notice shall identify the Securities (and, in the case of partial
redemption, the principal amounts of the Securities) to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price and method of payment, if other than in cash;
(3) if applicable, the current conversion price or rate;
(4) the name and address of the Paying Agent and, if applicable, the
Conversion Agent;
(5) if applicable, that the right of the Holder to convert Securities
called for redemption shall terminate at the close of business on the
fifteenth day prior to the redemption date (or such other day as may be
specified as contemplated by Section 2.02 for Securities of any series);
(6) if applicable, that Holders who want to convert Securities called for
redemption must satisfy the requirements for conversion contained in such
Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(8) that interest, if any (or original issue discount, if Original Issue
Discount Securities), on Securities called for redemption ceases to accrue
on and after the redemption date unless the Company defaults in making such
redemption payment; and
(9) that the redemption is for a sinking fund or at the election of the
Company, whichever is the case.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at the Company's expense.
Section 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities of the series called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus, if applicable, accrued interest, if any, to the
redemption date; provided, however, that installments of interest the Interest
Payment Date for which is on or prior to the redemption date shall be payable
to the persons who are Holders of such Securities on the relevant record dates
for such interest according to their terms and Section 2.13.
Section 3.06. Deposit of Redemption Price.
On or before noon, New York time, on the redemption date, the Company shall
deposit with the Paying Agent money in immediately available funds (or
securities if permitted by the terms of such Securities) sufficient to pay the
redemption price of, and (except if the redemption date is an Interest Payment
Date) accrued interest,
20
if any, on, all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which are delivered by the
Company to the Trustee for cancellation. The Paying Agent shall return to the
Company any money (or securities) not required for that purpose because of
conversion of Securities.
Section 3.07. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security of the same series, of any
authorized denomination requested by such Holder, equal in principal amount to
the unredeemed portion of the Security surrendered.
Section 3.08. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may arrange for
the purchase and conversion of any Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Trustee in trust for the Securityholders, on
or before the close of business on the redemption date, an amount in cash not
less than the redemption price, together with interest, if any, accrued to the
redemption date, of such Securities. Notwithstanding anything to the contrary
contained in this Article Three, the obligation of the Company to pay the
redemption price of such Securities, including all accrued interest, if any,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, any Securities
not duly surrendered for conversion by the Holders thereof may, at the option
of the Company, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Eleven) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment of the
above amount as aforesaid. The Trustee shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it in the same
manner as it would moneys deposited with it by the Company for the redemption
of Securities. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with
any such arrangement for the purchase and conversion of any Securities between
the Company and such purchasers, including the costs and expenses incurred by
the Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE FOUR
Covenants
Section 4.01. Payment of Securities.
The Company shall pay the principal of and any interest on the Securities of
each series in accordance with the terms of the Securities of such series and
this Indenture.
To the extent enforceable under applicable law, the Company shall pay
interest on overdue principal at the rate borne by the Securities of such
series (unless a different rate is specified as contemplated by Section 2.02
for Securities of such series).
Section 4.02. SEC Reports.
The Company shall file with the Trustee within 15 days after it files them
with the SEC copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
21
as the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934. The Company also shall comply with the other
provisions of TIA (S)314(a).
Section 4.03. Compliance Certificate.
The Company will, within 120 days after the close of each fiscal year of the
Company, commencing with the first fiscal year following the issuance of
financial Securities of any series under this Indenture, file with the Trustee
a certificate of the principal executive officer, the principal officer or the
principal accounting officer of the Company, covering the period from the date
of issuance of such Securities to the end of the fiscal year in which such
Securities were issued, in the case of the first such certificate, and
covering the preceding fiscal year in the case of each subsequent certificate,
and stating whether or not, to the knowledge of the signer, the Company has
complied with all conditions and covenants on its part contained in this
Indenture, and, if the signer has obtained knowledge of any default by the
Company in the performance, observance or fulfillment of any such condition or
covenant, specifying each such default and the nature thereof. For the purpose
of this Section 4.03, compliance shall be determined without regard to any
grace period or requirement of notice provided pursuant to the terms of this
Indenture. The certificate need not comply with Section 12.05.
Section 4.04. Corporate Existence.
Subject to the provisions of Section 5.01 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
Section 4.05. Securities Senior to Junior Subordinated Debt.
(a) The Company covenants that the Securities shall be superior in right of
payment as provided in this Section to all Junior Subordinated Debt. Junior
Subordinated Debt means the principal of and interest on Debt of the Company
hereafter created or incurred which by its terms is subordinate in right of
payment to the Securities. "Debt" has the meaning specified in Section 10.01.
(b) Upon the happening of any default in the payment of the principal of or
interest on the Securities of any series when the same becomes due and
payable, then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by the Company with
respect to the principal of or interest on any Junior Subordinated Debt or to
acquire any instruments evidencing any issue of Junior Subordinated Debt or on
account of any sinking fund provisions of any Junior Subordinated Debt (except
payments made in capital stock of the Company or in warrants, rights or
options to purchase or acquire capital stock of the Company, sinking fund
payments made in instruments evidencing Junior Subordinated Debt of the same
issue acquired before such default and notice thereof, and payments made
through the exchange of other debt obligations of the Company for such Junior
Subordinated Debt in accordance with the terms of such Junior Subordinated
Debt provided that such debt obligations are subordinated to the Securities at
least to the extent that the Junior Subordinated Debt for which they are
exchanged is so subordinated in accordance with this Section 4.05).
(c) Upon the maturity of the Securities of any series by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon shall
first be paid in full, or such payment duly provided for in a manner
satisfactory to the Trustee of the Securities of that series, before any
payment is made on account of the principal of or interest on any Junior
Subordinated Debt or to acquire any instruments evidencing any issue of Junior
Subordinated Debt or on account of any sinking fund provisions of any Junior
Subordinated Debt (except payments made in capital stock of the Company or in
warrants, rights or options to purchase or acquire capital stock of the
Company, sinking fund payments made in instruments evidencing Junior
Subordinated Debt of the same issue acquired before the maturity of the
Securities of such series, and payments made through the exchange of other
debt obligations of the Company for such Junior Subordinated Debt in
accordance with the
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terms of such Junior Subordinated Debt provided that such debt obligations are
subordinated to the Securities at least to the extent that the Junior
Subordinated Debt for which they are exchanged is so subordinated in accordance
with this Section 4.05).
(d) Upon any distribution of assets of the Company in any dissolution,
winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise), the Holders of the Securities shall be
entitled to receive payment in full of the principal thereof and interest due
thereon before the holders of any Junior Subordinated Debt are entitled to
receive any payment on account of the principal of or interest on such Junior
Subordinated Debt.
Section 4.06. Limitation on Subordinated Debt Senior to the Securities.
The Company will not create or incur any Debt which is subordinate or junior
in right of payment to any Senior Debt, as defined in Section 10.01, if such
Debt is superior in right of payment to the Securities.
ARTICLE FIVE
Successor Corporation
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer its
properties and assets substantially as an entirety to, another corporation
unless (1) the successor corporation, which shall be a corporation organized
and existing under the laws of the United States or a State thereof, assumes by
supplemental indenture all the obligations of the Company under the Securities
and this Indenture; and (2) immediately after giving effect to such
transaction, no Default of Event of Default shall have occurred and be
continuing. Thereafter, unless otherwise specified as contemplated by Section
2.02 for the Securities of any series, all such obligations of the predecessor
corporation shall terminate.
ARTICLE SIX
Defaults and Remedies
Section 6.01. Events of Default.
An "Event of Default" with respect to Securities of any series means each one
of the events specified below in this Section 6.01, unless it is either
inapplicable to a particular series or is specifically deleted or modified as
contemplated by Section 2.02 for the Securities of such series, and any other
events as may be specified as contemplated by Section 2.02 for the Securities
of such series:
(1) the Company defaults in the payment of any interest on any Security
of that series when the same becomes due and payable and the default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any Security
of that series when the same becomes due and payable at maturity, upon
redemption (including default in the making of any mandatory sinking fund
payment), upon purchase by the Company at the option of the Holder pursuant
to the terms of such Security or otherwise;
(3) the Company fails to comply with any of its other agreements in
Securities of that series or this Indenture (other than an agreement which
has expressly been included in this Indenture solely for the benefit of
Securities of any series other than that series or is expressly made
inapplicable to the Securities of such series as contemplated by Section
2.02) and the default continues for the period and after the notice
specified below;
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(4) the Company pursuant to or within the meaning of any Bankruptcy Law;
(A) commences a voluntary case or consents to the commencement of a
case against it,
(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, or
(D) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
adjudicates the Company insolvent or bankrupt,
(B) appoints a Custodian of the Company or for all or substantially
all of its property, or
(C) orders the winding up or liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided with respect to Securities of
that series occurs.
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.
A Default under clause (3) is not an Event of Default until the Trustee
notifies the Company or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities of that series notify the Company and the
Trustee of the Default and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in Section
6.01(4) or (5)) occurs and is continuing with respect to Securities of any
series at the time outstanding, the Trustee by notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities of that series by notice to the Company and the Trustee, may
declare to be due and payable immediately (1) the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of the Securities of
that series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of acceleration. Upon such declaration,
such principal amount (or specified amount) and interest, if any, shall be due
and payable immediately. If an Event of Default specified in Section 6.01(4)
or (5) occurs and is continuing, (1) the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of the Securities of
that series) of all of the Securities of that series then outstanding and (2)
interest, if any, accrued to the date of such acceleration shall become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or Securityholders. The Holders of a majority in aggregate
principal amount of the outstanding Securities of the series with respect to
which an acceleration applies by notice to the Trustee may rescind an
acceleration and its consequences with respect to such series if all existing
Events of Default (other than the non-payment of the principal of and accrued
interest if any, on Securities that have become due solely by such
acceleration) with respect to Securities of that series have been cured or
waived and if the rescission would not conflict with any judgment or decree.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of the whole amount which then shall
have become due and remain unpaid for principal or interest, if any, on the
Securities of that series or to enforce the performance of any provision of
the Securities of that series or this Indenture.
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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.
Section 6.04. Waiver of Existing Defaults.
Subject to Section 9.02, the Holders of a majority in aggregate principal
amount of the outstanding Securities of any series by notice to the Trustee may
waive on behalf of the Holders of all the Securities of such series an existing
Default or Event of Default and its consequences. When a Default or Event of
Default is waived, it is cured and stops continuing.
Section 6.05. Control by Majority.
The Holders of a majority in aggregate principal amount of the outstanding
Securities of any series 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 it, with respect to the Securities of such series. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture, that is unduly prejudicial to the rights of another
Securityholder or that would involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
No holder of any Security of any series shall have the right to pursue
any remedy with respect to this Indenture or the Securities 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
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer and provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(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 outstanding Securities of such series.
A Securityholder of any series may not use this Indenture to prejudice the
rights of another Securityholder of such series or to obtain a preference or
priority over another Securityholder of such series, except in the manner
herein provided and for the equal and ratable benefit of all Securityholders of
such series.
Section 6.07. Rights of Holders to Receive Payment and to Convert.
Subject to Article Ten and notwithstanding any other provision of this
Indenture, the right of any Holder of a Security to receive payment of
principal of and (subject to Section 2.13) interest, if any, on the Security,
on or after the respective due dates with respect to such payments expressed in
such Security, and, if applicable, to convert such Security on the terms and
subject to the conditions applicable to Securities of such series, or to bring
suit for the enforcement of any such payment on or after such respective dates
or of such right to convert, if any, shall not be impaired or affected without
the consent of the Holder.
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Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing with respect to the Securities of any series, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount which then shall have become due and remain unpaid
for principal and interest, if any, on the Securities of such series.
Section 6.09. 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 and
the Securityholders allowed in any judicial proceeding relative to the Company,
its creditors or its property and to collect and receive money, property or
securities payable or deliverable on any such claims and to distribute the
same.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out
the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Senior Debt to the extent required by Article Ten;
Third: to the payment of amounts due and unpaid for principal and
interest, if any, on the Securities in respect of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts which then shall have become due and payable on such
Securities for principal and interest, respectively; and
Fourth: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section, notice of which shall be mailed to
each Securityholder by the Company at least 15 days before such record date.
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 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in aggregate principal
amount of the outstanding Securities of any series.
ARTICLE SEVEN
Trustee
Section 7.01. Duties of Trustee.
(a) If an Event of Default with respect to Securities of any series has
occurred and is continuing, the Trustee shall with respect to such series
exercise such of the rights and powers vested in it by this Indenture with
respect to such series and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) With respect to Securities of any series, except during the continuance
of an Event of Default with respect to Securities of such series:
26
(1) The Trustee need perform only those duties that are specifically set
forth in this Indenture or the TIA and no others.
(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. The Trustee, however,
shall examine the certificates and opinions 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.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the Trustee
is subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may rely on any document 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.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate, an Opinion of Counsel, and/or an
accountant's certificate. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on the Certificate, Opinion or
accountant's certificate.
(c) The Trustee may act through agents and counsel and shall not be
responsible for the misconduct or negligence of any agent or counsel appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or
powers.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee, however, must comply with Sections 7.10 and
7.11.
Section 7.04. 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 Securities; and it shall not be responsible for any
statement in the Indenture or the Securities other than its certificate of
authentication.
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Section 7.05. Notice of Defaults.
If a Default occurs and is continuing with respect to Securities of any
series and if it is known to a Trust Officer of the Trustee, the Trustee shall
mail to each Securityholder of such series notice of the Default within 90 days
after it occurs or as soon as reasonably practicable thereafter. Except in the
case of a default in payment of principal of or interest on any Security of
such series (including default in the making of any mandatory sinking fund or
mandatory repurchase payment), the Trustee may withhold the notice if and so
long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders of such series.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the date
on which Securities are originally issued after this Indenture, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA (S)313(a) if required by said Section. The Trustee also shall
comply with TIA (S)313(b).
A copy of each report at the time of its mailing to Securityholders shall be
filed by the Company with the SEC and each stock exchange on which the
Securities are listed.
The Company will notify the Trustee if and when the Securities are listed on
any stock exchange.
Section 7.07. 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 law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this trust and its duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. Failure of the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall have the
right to elect to defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its written consent. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08. Replacement of Trustee.
The Trustee may resign at any time with respect to Securities of one or more
series by so notifying the Company. The Holders of a majority in aggregate
principal amount of the outstanding Securities of any series may remove the
Trustee with respect to the Securities of such series by so notifying the
Company. The Holders of a majority in aggregate principal amount of the
outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the removed Trustee and may appoint a
successor Trustee with the Company's consent. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
28
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed, or if a vacancy exists in the office of
Trustee for any reason, with respect to the Securities of one or more series,
the Company shall promptly appoint a successor Trustee or Trustees (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series).
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee (subject to its lien, if any, provided for in Section 7.07), the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee with respect to Securities of any 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 a majority in aggregate
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation or
national banking association, the successor corporation or national banking
association 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 (S)310(a). The Trustee shall always have a combined capital and surplus of
at least $50,000,000 as set forth in its most recent published annual report of
condition. With respect to the Securities of each series, the Trustee shall
comply with TIA (S)310(b) and in determining whether the Trustee has a
conflicting interest as defined in TIA (S)310(b) with respect to the Securities
of any series, there shall be excluded this Indenture with respect to the
Securities of any series other than such series. Nothing herein shall prevent
the Trustee from filing with the SEC the application referred to in the second
to last paragraph of TIA (S)310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S)311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S)311(a) to the extent indicated.
ARTICLE EIGHT
Discharge of Indenture
Section 8.01. Termination of Company's Obligations.
The Company may terminate all of its obligations under the Securities of any
series and this Indenture with respect to the Securities of such series if
either (1) all Securities of such series previously authenticated and
29
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money (or, if permitted by the
terms of such Securities, securities) has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.03) have been
delivered to the Trustee for cancellation; or (2) the Company irrevocably
deposits in trust with the Trustee money or U.S. Government Obligations
sufficient to pay the principal of and interest, if any, on all Securities of
such series not theretofore cancelled or delivered to the Trustee for
cancellation (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment money (or, if permitted by the
terms of such Securities, securities) has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.03) to maturity or
redemption, as the case may be.
The Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 20.9, 4.01,
7.07, 7.08 and 8.03 and Article Eleven of this Indenture, however, shall
survive until the Securities of such series are no longer outstanding.
Thereafter the Company's obligations in Sections 7.07 and 8.03 shall survive.
Notwithstanding the satisfaction and discharge of this Indenture with respect
to the Securities of any series, if money or U.S. Government Obligations shall
have been deposited with the Trustee pursuant to clause (2) of this Section,
the obligations of the Trustee under Section 8.02 and the second sentence of
Section 8.03 shall survive.
After a deposit and if all other conditions thereto are met, the Trustee for
the Securities of such series shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities, except for those surviving obligations specified above; provided,
however, that the Trustee shall not be required to execute such instrument
until the expiration of ninety days after the date of a deposit and that such
instrument may be made subject to the condition that such deposit had been made
prior to the happening of any event specified in Section 10.02.
In order to have money available on a payment date to pay the principal of or
interest, if any, on the Securities, the U.S. Government Obligations shall be
payable as to principal or interest on or before such payment date in such
amounts as well provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
Section 8.02. Application of Trust Fund.
The Trustee shall hold in trust money and U.S. Government Obligations
deposited with it pursuant to Section 8.01. Subject to Section 10.07, it shall
apply the deposited money and the money from the U.S. Government Obligations
through the Paying Agent and in accordance with the provisions of the
Securities and this Indenture to the payment of principal of and interest, if
any, on the Securities for the payment of which such money or U.S. Government
Obligations has been deposited with the Trustee.
Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time. The
Trustee and the Paying Agent shall pay to the Company upon written request any
money or securities held by them for the payment of principal or interest, if
any, that remains unclaimed for two years. After that, Holders entitled to the
money or securities must look to the Company for payment unless an applicable
abandoned property law designates another person.
ARTICLE NINE
Amendments, Supplements and Waivers
Section 9.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of any series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to comply with Section 5.01 and 11.16;
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(4) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(5) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series);
(6) to change or eliminate any of the provisions of this Indenture,
provided that, except as otherwise contemplated by Section 2.02(13), any
such change or elimination shall become effective only when there is no
Security outstanding of any series created prior thereto which is entitled
to the benefit of such provision;
(7) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to provide for uncertificated
Securities in addition to certificated Securities (so long as any
"registration-required obligation" within the meaning of Section 163(f)(2)
of the Internal Revenue Code of 1986, as amended (the "Code") is in
registered form for purposes of the Code);
(8) to make any change that, in the opinion of the Board of Directors,
does not materially adversely affect the rights of any Securityholder; or
(9) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA.
Section 9.02. With Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or the
Securities of any series without notice to any Securityholder but with the
written consent of the Holders of a majority in aggregate principal amount of
the outstanding Securities of each series affected by such amendment or
supplement. The Holders of a majority in aggregate principal amount of the
outstanding Securities of any series may on behalf of the Holders of all
Securities of such series waive compliance by the Company with any provision of
this Indenture or of Securities of such series without notice to any
Securityholder. Without the consent of each Securityholder affected, however,
an amendment, supplement or waiver, including a waiver pursuant to Section
6.04, may not:
(1) reduce the amount of Securities of any series whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on any
Security (or, in the case of an Original Issue Discount Security, reduce
the rate of accrual of original issue discount);
(3) reduce the principal of (or any premium payable upon the redemption
of) or extend the fixed maturity of any Security (or, in the case of an
Original Issue Discount Security, reduce the portion of the principal
amount that would be due and payable upon acceleration of the maturity
thereof pursuant to Section 6.02);
(4) change the amount or time of any payment required by any sinking fund
provisions of the Securities of any series;
(5) make any change that materially adversely affects the rights of a
Holder to require the Company to purchase a Security in accordance with the
terms thereof and this Indenture;
(6) waive a default in the payment of the principal of or interest, if
any, on any Security;
(7) make any Security payable in money or securities other than that
stated in the Security; or
31
(8) make any change that materially adversely affects the right to
convert any Security or that increases the conversion price or reduces the
conversion rate of any Security.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed supplement, but it shall be
sufficient if such consent approves the substance thereof.
Section 9.03. 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 9.04. Revocation and Effect of Consents.
A consent to an amendment, supplement, waiver or other action by a Holder of
a Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. Any such
Holder or subsequent Holder, however, may revoke the consent as to his Security
or portion of a Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment,
supplement, waiver or other action becomes effective. An amendment, supplement,
waiver or other action shall become effective on receipt by the Trustee of
written consents from the Holders of the requisite percentage in aggregate
principal amount of the outstanding Securities of the relevant series. After an
amendment, supplement or waiver becomes effective, it shall bind every
Securityholder of each series of Securities so affected.
Section 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the 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 the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights, duties, immunities or liabilities of the Trustee.
If it does, the Trustee may but need not sign it. The Company may not sign an
amendment or supplement until the Board of Directors approves it.
ARTICLE TEN
Subordination
Section 10.01. Securities Subordinated to Senior Debt.
The Company agrees, and each holder of the Securities by his acceptance
thereof likewise agrees, that the payment of the principal of and interest, if
any, on the Securities is subordinated, to the extent and in the manner
provided in this Article, to the prior payment in full of all Senior Debt.
Senior Debt means the principal of and interest on Debt of the Company
outstanding at any time other than (i) the Securities, (ii) the Company's
outstanding 11 1/8% senior subordinated debentures due October 1, 2003, which
shall rank pari passu with the Securities, and (iii) Debt which by its terms is
not superior in right of payment to the Securities. "Debt" of any person means:
(1) any indebtedness of such person (i) for borrowed money or (ii)
evidenced by a note, debenture or similar instrument (including a purchase
money obligation) given in connection with the acquisition of any property
or assets, including securities;
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(2) any guarantee by such person of any indebtedness of others described
in the preceding clause (1); and
(3) any amendment, renewal, extension or refunding of any such
indebtedness or guarantee.
This Article shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior
Debt, and such holders are made obligees hereunder and they and/or each of them
may enforce such provisions.
Section 10.02. Company Not to Make Payments with Respect to Securities in
Certain Circumstances.
(a) Upon the maturity of any Senior Debt by lapse of time, acceleration or
otherwise, all principal thereof and interest thereon shall first be paid in
full, or such payment duly provided for in cash or in a manner satisfactory to
the holders of such Senior Debt, before any payment is made on account of the
principal of or
interest on the Securities or to acquire any of the Securities or on account of
any sinking fund provisions of the Securities (except payments made in capital
stock of the Company or in warrants, rights or options to purchase or acquire
capital stock of the Company, sinking fund payments made in Securities acquired
by the Company before the maturity of such Senior Debt, and payments made
through the exchange of other debt obligations of the Company for such
Securities in accordance with the terms of such Securities, provided that such
debt obligations are subordinated to Senior Debt at least to the extent that
the Securities for which they are exchanged are so subordinated pursuant to
this Article Ten).
(b) Upon the happening of any default in payment of the principal of or
interest on any Senior Debt when the same becomes due and payable, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Company with respect to the principal of
or interest on the Securities or to acquire any of the Securities or on account
of any sinking fund provisions of the Securities (except payments made in
capital stock of the Company or in warrants, rights or options to purchase or
acquire capital stock of the Company, sinking fund payments made in Securities
acquired by the Company before such default and notice thereof, and payments
made through the exchange of other debt obligations of the Company for such
Securities in accordance with the terms of such Securities, provided that such
debt obligations are subordinated to Senior Debt at least to the extent that
the Securities for which they are exchanged are so subordinated pursuant to
this Article Ten).
(c) In the event that notwithstanding the provisions of this Section 10.02
the Company shall make any payment to the Trustee on account of the principal
of or interest on the Securities, or on account of any sinking fund provisions
of the Securities, after the maturity of any Senior Debt as described in
Section 10.02(a) above or after the happening of a default in payment of the
principal of or interest on any Senior Debt as described in Section 10.02(b)
above, then, unless and until all Senior Debt which shall have matured, and all
interest thereon, shall have been paid in full (or the declaration of
acceleration thereof shall have been rescinded or annulled), or such default
shall have been cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 10.06 and 10.07) shall be held by the
Trustee, in trust for the benefit of, and shall be paid forthwith over and
delivered to, the holders of such Senior Debt (pro rata as to each of such
holders on the basis of the respective amounts of Senior Debt held by them) or
their representative or the trustee under the indenture or other agreement (if
any) pursuant to which such Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all such
Senior Debt remaining unpaid to the extent necessary to pay the same in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt. The Company shall give
prompt written notice to the Trustee of any default in the payment of principal
of or interest on any Senior Debt.
Section 10.03. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.
Upon any distribution of assets of the Company in any dissolution, winding
up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
33
(a) the holders of all Senior Debt shall first be entitled to receive
payments in full of the principal thereof and interest due thereon before
the Holders of the Securities are entitled to receive any payment on
account of the principal of or interest on the Securities;
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than securities
of the Company as reorganized or readjusted or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article Ten with respect to the Securities, to the payment
in full without diminution or modification by such plan of all Senior
Debt), to which the Holders of the Securities or the Trustee on behalf of
the Holders of the Securities would be entitled except for the provisions
of this Article Ten, shall be paid by the liquidating trustee or agent or
other person making such payment or distribution directly to the holders of
Senior Debt or their representative, or to the trustee under any indenture
under which Senior Debt may have been issued (pro rata as to each such
holder, representative or trustee on the basis of the respective amounts of
unpaid Senior Debt held or represented by each), to the extent necessary to
make payment in full of all Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution or provision therefor to
the holders of such Senior Debt; and
(c) in the event that notwithstanding the foregoing provisions of this
Section 10.03, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in this Article Ten with respect to the Securities, to the payment
in full without diminution or modification by such plan of all Senior
Debt), shall be received by the Trustee or the Holders of the Securities on
account of principal of or interest on the Securities before all Senior
Debt is paid in full, or effective provision made for its payment, such
payment or distribution (subject to the provisions of Sections 10.06 and
10.07) shall be received and held in trust for and shall be paid over to
the holders of the Senior Debt remaining unpaid or unprovided for or their
representative, or to the trustee under any indenture under which such
Senior Debt may have been issued (pro rata as provided in subsection (b)
above), for application to the payment of such Senior Debt until all such
Senior Debt shall have been paid in full, after giving effect to any
concurrent payment or distribution or provision therefor to the holders of
such Senior Debt.
The Company shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Company.
Section 10.04. Securityholders to be Subrogated to Right of Holders of Senior
Debt.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities shall be subrogated equally and ratably to the rights of the holders
of Senior Debt to receive payments or distributions of assets of the Company
applicable to the Senior Debt until all amounts owing on the Securities shall
be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Debt by or on behalf of the Company
or by or on behalf of the Holders of the Securities by virtue of this Article
Ten which otherwise would have been made to the Holders of the Securities
shall, as between the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, be deemed to be payment by the Company to or
on account of the Senior Debt, it being understood that the provisions of this
Article Ten are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Debt, on the other hand.
Section 10.05. Obligation of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
any Security is intended to or shall impair, as between the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay to
the holders of the
34
Securities the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Ten of
the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any payment or
distribution of assets of the Company referred to in this Article Ten, the
Trustee and the Holders of the Securities shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or, subject to the provisions of Sections 7.01 and 7.02, a certificate of the
receiver, trustee in bankruptcy, liquidating trustee or agent or other person
making such payment or distribution to the Trustee or the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Ten.
Nothing contained in this Article Ten or elsewhere in this Indenture or in
any Security is intended to or shall affect the obligation of the Company to
make, or prevent the Company from making, at any time except during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding, and except as provided in subsections (a) and (b) of Section 10.02,
payments at any time of the principal of or interest on the Securities.
Section 10.06. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the
Trustee, unless at least one Business Day prior to the making of any such
payment, the Trustee shall have received written notice thereof from the
Company or from one or more holders of Senior Debt or from any representative
thereof or from any trustee therefor, together with proof satisfactory to the
Trustee of such holding of Senior Debt or of the authority of such
representative or trustee; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Sections 7.01 and 7.02, shall
be entitled to assume conclusively that no such facts exist. The Trustee shall
be entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a representative or
trustee on behalf of such holder) to establish that such notice has been given
by a holder of Senior Debt or a representative of or trustee on behalf of any
such holder. In the event that the Trustee determines, in good faith, that
further evidence is required with respect to the right of any person as a
holder of Senior Debt to participate in any payments or distribution pursuant
to this Article Ten, the Trustee may request such person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt held
by such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Article Ten, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment. The
Trustee, however, shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt and nothing in this Article Ten shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.07.
Section 10.07. Application by Trustee of Monies or U.S. Government Obligations
Deposited with It.
Money or U.S. Government Obligations deposited in trust with the Trustee
pursuant to and in accordance with Section 8.01 shall be for the sole benefit
of Securityholders and, to the extent allocated for the payment of Securities,
shall not be subject to the subordination provisions of this Article Ten, if
the same are deposited in trust prior to the happening of any event specified
in Section 10.02. Otherwise, any deposit of monies or U.S. Government
Obligations by the Company with the Trustee or any Paying Agent (whether or not
in trust) for the payment of the principal of or interest on any Securities
shall be subject to the provisions of Sections 10.01, 10.02 and 10.03 except
that, if prior to the date on which by the terms of this Indenture any such
monies may become payable for any purpose (including, without limitation, the
payment of the principal of or the interest, if
35
any, on any Security) the Trustee shall not have received with respect to such
monies the notice provided for in Section 10.06, then the Trustee or the Paying
Agent shall have full power and authority to receive such monies and U.S.
Government Obligations and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section 10.07 shall be construed
solely for the benefit of the Trustee and Paying Agent and, as to the first
sentence hereof, the Securityholder, and shall not otherwise affect the rights
of holders of Senior Debt.
Section 10.08. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to enforce
subordination as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
Section 10.09. Securityholders Authorize Trustee to Effectuate Subordination of
Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Ten and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the
Company, the immediate filing of a claim for the unpaid balance of his
Securities in the form required in said proceedings and causing said claim to
be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of Senior Debt have the
right to file and are hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities.
Section 10.10. Right of Trustee to Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth in this Article
Ten in respect of any Senior Debt at any time held by it to the same extent as
any other holder of Senior Debt, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
Section 10.11. Article Ten Not to Prevent Events of Default.
The failure to make a payment on account of principal or interest by reason
of any provision in this Article Ten shall not be construed as preventing the
occurrence of an Event of Default under Section 6.01.
ARTICLE ELEVEN
Conversion
Section 11.01. Applicability of Article.
Securities of any series which are convertible into Parent Stock at the
option of the Holder shall be convertible in accordance with their terms and
(except as otherwise specified as contemplated by Section 2.02 for Securities
of any series) in accordance with this Article. Each reference in this Article
to "a Security" or "the Securities" refers to the Securities of the particular
series that is convertible into Parent Stock. If more than one series of
Securities with conversion privileges are outstanding at any time, the
provisions of this Article shall be applied separately to each such series.
36
Section 11.02. Conversion Privilege.
A Holder of a Security of any authorized denomination of any series may
convert it into Parent Stock, at any time during the period specified on the
Securities of that series, at the conversion price or conversion rate in effect
on the conversion date, except that, with respect to any Security (or portion
thereof) called for redemption, such right shall (except as otherwise provided
in Section 3.08) terminate at the close of business on the fifteenth day prior
to the date fixed for redemption of such Security (or portion thereof) (or such
other day as may be specified as contemplated by Section 2.02 for Securities of
such series), unless the Company shall default in payment of the amount due
upon redemption thereof.
The initial conversion price or conversion rate in respect of a series of
Securities shall be as specified on the Securities of that series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Sections 11.07 through 11.13 or such other or different terms, if
any, as may be specified as contemplated by Section 2.02 for Securities of such
series.
A Holder may convert any Security in full and may convert a portion of a
Security if the portion to be converted and the remaining portion of such
Security are in denominations issuable for that series of Securities.
Provisions of this Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of it.
Section 11.03. Conversion Procedure.
To convert a Security of any series, a Holder must satisfy the requirements
for conversion contained on the Securities of that series. The date on which
the Holder satisfies all those requirements is the conversion date. As soon as
practicable after the conversion date, the Company shall deliver to the Holder
through the Conversion Agent a certificate for the number of shares of Parent
Stock deliverable upon the conversion and cash or its check in lieu of any
fractional share. The person in whose name the certificate is registered
becomes a stockholder of record on the conversion date and the rights of the
Holder of the Securities so converted as a Holder thereof cease as of such
date.
If the Holder converts more than one Security of any series at the same time,
the number of full shares issuable upon the conversion shall be based on the
total principal amount of the Securities of such series so converted.
Upon surrender of a Security of any series that is converted in part, the
Trustee shall authenticate for the Holder a new Security of that series equal
in principal amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in a
place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
The Company will not be required to deliver certificates for shares of Parent
Stock upon conversion while the Parent's stock transfer books are closed for a
meeting of stockholders or for the payment of dividends or for any other
purpose, but certificates for shares of Parent Stock shall be delivered as soon
as the stock transfer books shall again be opened.
Securities of any series surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date for such series to the opening of business on such Interest
Payment Date shall (except in the case of Securities or portions thereof which
have been called for redemption on a redemption date within such period) be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such Interest Payment Date on the principal amount of
Securities being surrendered for conversion; provided, that no such payment
need be made if there shall exist, at the time of conversion, a default in the
payment of interest on the Securities of such series. The funds so delivered to
the Conversion Agent shall be paid to the Company on or after such Interest
Payment Date unless
37
the Company shall default on the payment of the interest due on such Interest
Payment Date, in which event such funds shall be paid to the Holder who
delivered the same. Except as provided in the preceding sentence and subject to
the last paragraph of Section 2.13, no payment or adjustment shall be made upon
any conversion on account of any interest accrued on the Securities surrendered
for conversion or on account of any dividends on the Parent Stock issued upon
conversion.
Section 11.04. Fractional Shares.
The Company will not deliver a fractional share of Parent Stock upon
conversion of a Security. Instead, the Company will deliver cash or its check
for the current market value of a fractional share. The current market value of
a fractional share is determined as follows: Multiply the current market price
of a full share on the last full trading day prior to the conversion date by
the fraction (rounded to the nearest 1/100 of a share) and round the result to
the nearest whole cent.
Section 11.05. Taxes on Conversion.
If a Holder of a Security converts it, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the delivery of shares of Parent
Stock upon the conversion. The Holder, however, shall pay any such tax which is
due because the shares are issued in a name other than the Holder's name.
Section 11.06. Company to Provide Stock.
The Company shall (i) cause Parent to, from time to time as may be necessary,
reserve out of Parent's authorized but unissued Parent Stock or Parent Stock
held in treasury enough shares of Parent Stock to permit the conversion of all
outstanding Securities and (ii) secure from Parent (or elsewhere) a sufficient
number of shares of Parent Stock for delivery upon conversions of Securities.
All shares of Parent Stock which may be delivered upon conversion of the
Securities shall be validly issued, fully paid and non-assessable and shall be
free from any preemptive rights.
In order that the Company may deliver shares of Parent Stock upon conversion
of the Securities, the Company will, and will cause Parent to, endeavor to
comply with all applicable Federal and State securities laws and will endeavor
to cause such shares to be listed on each national or regional securities
exchange on which the Parent Stock is listed.
If the taking of any action would cause an adjustment to the then prevailing
conversion price or conversion rate which would result in shares of Parent
Stock being issued upon conversion of the Securities at an effective conversion
price below the then par value, if any, of the Parent Stock, or would raise the
par value above the effective conversion price then in effect, the Company
will, and will cause Parent to, take such corporate action as may, in the
opinion of its counsel, be necessary in order that the Parent may validly and
legally issue, and the Company may deliver, fully paid and non-assessable
shares of Parent Stock at such adjusted conversion price or conversion rate or
the conversion price or conversion rate then in effect, as the case may be.
Section 11.07. Adjustment for Change in Capital Stock.
If the Parent:
(1) pays a dividend or makes a distribution in shares of Parent Stock;
(2) subdivides the outstanding shares of Parent Stock into a greater
number of shares;
(3) combines the outstanding shares of Parent Stock into a smaller number
of shares;
(4) pays a dividend or makes a distribution on the Parent Stock in shares
of its capital stock other than Parent Stock; or
(5) issues by reclassification of its shares of Parent Stock any shares
of its capital stock,
38
then the conversion privilege and the conversion price or conversion rate in
effect immediately prior to the opening of business on the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be adjusted so that the Holder of any Security
thereafter converted may receive the number of shares of capital stock of the
Parent which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such time. Such
adjustment shall be made successively whenever any event listed above shall
occur.
For a dividend or distribution, the adjustment shall become effective
immediately after the record date for the dividend or distribution. For a
subdivision, combination or reclassification, the adjustment shall become
effective immediately after the effective date of the subdivision, combination
or reclassification.
If after an adjustment a Holder of a Security upon conversion of it may
receive shares of two or more classes of capital stock of the Parent, the
conversion prices of the classes of capital stock (after giving effect to such
allocation of the adjusted conversion price between or among the classes of
capital stock as the Board of Directors shall determine to be appropriate) or
the conversion rate, as the case may be, shall thereafter be subject to
adjustment on terms comparable to those applicable to Parent Stock in this
Indenture.
Any shares of Parent Stock issuable in payment of a dividend shall be deemed
to have been issued immediately prior to the time of the record date for such
dividend for purposes of calculating the number of outstanding shares of Parent
Stock under Sections 11.08 and 11.09 below.
Section 11.08. Adjustment for Rights Issue.
If the Parent issues any rights or warrants to all holders of shares of its
Parent Stock entitling them for a period expiring within 45 days after the
record date mentioned below to purchase shares of Parent Stock (or Convertible
Securities) at a price per share (or having a conversion price per share, after
adding thereto an allocable portion of the exercise price of the right or
warrant to purchase such Convertible Securities, computed on the basis of the
maximum number of shares of Parent Stock issuable upon conversion of such
Convertible Securities) less than the Average Market Price on the Determination
Date, the conversion price or rate shall be adjusted so that it shall equal the
price or rate determined by multiplying the conversion price or dividing the
conversion rate, as the case may be, in effect immediately prior to the opening
of business on that record date by a fraction, of which the numerator shall be
the number of shares of Parent Stock outstanding on such record date plus the
number of shares of Parent Stock which the aggregate offering price of the
total number of shares of Parent Stock so offered (or the aggregate conversion
price of the Convertible Securities to be so offered, after adding thereto the
aggregate exercise price of the rights or warrants to purchase such Convertible
Securities) would purchase at such Average Market Price and of which the
denominator shall be the number of shares of Parent Stock outstanding on such
record date plus the number of additional shares of Parent Stock offered for
subscription or purchase (or into which the Convertible Securities so offered
are convertible). Shares of Parent Stock owned by or held for the account of
the Parent shall not be deemed outstanding for the purpose of any such
adjustment.
For purposes of this Section 11.08, the number of shares of Parent Stock
outstanding on any record date shall be deemed to include (i) the maximum
number of shares of Parent Stock the issuance of which would be necessary to
effect the full exercise, exchange or conversion of all Convertible Securities
outstanding on such record date which are then exercisable, exchangeable or
convertible at a price equal to or less than the Average Market Price per share
of Parent Stock, if all of such Convertible Securities were deemed to have been
exercised, exchanged or converted immediately prior to the opening of business
of such record date and (ii) if the Series B TCI Group Common Stock is
convertible into Parent Stock, the maximum number of shares of Parent Stock the
issuance of which would be necessary to effect the full conversion of all
shares of Series B TCI Group Common Stock outstanding on such record date, if
all of such shares of Series B TCI Group Common Stock were deemed to have been
converted immediately prior to the opening of business on such record date.
39
The adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the rights or
warrants. If all of the shares of Parent Stock (or all of the Convertible
Securities) subject to such rights or warrants have not been issued when such
rights or warrants expire (or, in the case of rights or warrants to purchase
Convertible Securities which have been exercised, all of the shares of Parent
Stock issuable upon conversion of such Convertible Securities have not been
issued prior to the expiration of the conversion right thereof), then the
conversion price or conversion rate shall promptly be readjusted to the
conversion price or conversion rate which would then be in effect had the
adjustment upon the issuance of such rights or warrants been made on the basis
of the actual number of shares of Parent Stock (or Convertible Securities)
issued upon the exercise of such rights or warrants (or the conversion of such
Convertible Securities).
No adjustment shall be made under this Section 11.08 if the adjusted
conversion price would be higher than, or the adjusted conversion rate would be
less than, the conversion price or conversion rate, as the case may be, in
effect prior to such adjustment.
Section 11.09. Adjustments for Other Distributions.
If the Parent distributes to all holders of shares of Parent Stock any assets
or debt securities or any rights or warrants to purchase securities, the
conversion price or conversion rate shall be adjusted by multiplying the
conversion price or dividing the conversion rate, as the case may be, in effect
immediately prior to the opening of business on the record date mentioned below
by a fraction of which the numerator shall be the total number of shares of
Parent Stock outstanding on such record date multiplied by the Average Market
Price on the Determination Date, less the fair market value (as determined by
the Board of Directors) on such record date of said assets or debt securities
or rights or warrants so distributed, and of which the denominator shall be the
total number of shares of Parent Stock outstanding on such record date
multiplied by such Average Market Price.
For purposes of this Section 11.09, the number of shares of Parent Stock
outstanding on any record date shall be deemed to include (i) the maximum
number of shares of Parent Stock the issuance of which would be necessary to
effect the full exercise, exchange or conversion of all Convertible Securities
outstanding on such record date which are then exercisable, exchangeable or
convertible at a price equal to or less than the Average Market Price, if all
of such Convertible Securities were deemed to have been exercised, exchanged or
converted immediately prior to the opening of business on such record date and
(ii) if the Series B TCI Group Common Stock is convertible into Parent Stock,
the maximum number of shares of Parent Stock the issuance of which would be
necessary to effect the full conversion of all shares of Series B TCI Group
Common Stock outstanding on such record date, if all of such shares of Series B
TCI Group Common Stock were deemed to have been converted immediately prior to
the opening of business on such record date.
The adjustment shall be made successively whenever any such distribution is
made, and shall become effective immediately after the record date for the
determination of stockholders entitled to receive the distribution. Shares of
Parent Stock owned by or held for the account of the Parent shall not be deemed
outstanding for the purpose of any such adjustment.
No adjustment shall be made under this Section 11.09 if the adjusted
conversion price would be higher than, or the adjusted conversion rate would be
less than, the conversion price or conversion rate, as the case may be, in
effect prior to such adjustment.
This Section does not apply to cash dividends or distributions. Also, this
Section does not apply to dividends or distributions referred to in Section
11.07 or to rights or warrants referred to in Section 11.08.
Section 11.10. Voluntary Adjustment.
The Company at any time may reduce the conversion price or increase the
conversion rate, temporarily or otherwise, by any amount but in no event shall
such adjusted conversion price or conversion rate result in shares of Parent
Stock being issuable upon conversion of the Securities if converted at the time
of such adjustment at an effective conversion price per share less than the par
value of the Parent Stock at the time such adjustment is made.
40
A voluntary adjustment of the conversion price or conversion rate pursuant to
this Section 11.10 does not change or adjust the conversion price or conversion
rate otherwise in effect for purposes of Section 11.07, 11.08 or 11.09. If an
event requiring an adjustment to the conversion price or conversion rate
pursuant to Section 11.07, 11.08 or 11.09 occurs at any time that a voluntary
adjustment to the conversion price or conversion rate is in effect pursuant to
this Section 11.10, then the adjustment required by Section 11.07, 11.08 or
11.09, whichever is applicable, shall be made to the conversion price or
conversion rate that would otherwise have been in effect as of the relevant
date specified in such Section had no voluntary adjustment pursuant to this
Section 11.10 been made, and for purposes of applying such Section, any such
voluntary adjustment shall be disregarded. If such adjustment would result in a
lower conversion price or a higher conversion rate, as the case may be, than
the conversion price or conversion rate as voluntarily adjusted by the Company,
then such lower conversion price or higher conversion rate shall be the
conversion price or conversion rate, as the case may be.
Section 11.11. Certain Definitions.
For the purposes of this Article, the following terms have the following
meanings:
"Average Market Price" of a share of Parent Stock on the Determination
Date for any issuance of rights or warrants or any distribution in respect
of which the Average Market Price is being calculated means the average of
the daily current market prices of the Parent Stock for the shortest of:
(i) the period of 30 consecutive trading days commencing 45 trading
days before such Determination Date,
(ii) the period commencing on the date next succeeding the first
public announcement of the issuance of rights or warrants or the
distribution in respect of which the Average Market Price is being
calculated and ending on the last full trading day before such
Determination Date, and
(iii) the period, if any, commencing on the date next succeeding the
Ex-Dividend Date with respect to the next preceding issuance of rights
or warrants or distribution for which an adjustment is required by the
provisions of Section 11.07(4), 11.08 or 11.09, and ending on the last
full trading day before such Determination Date.
If the record date for an issuance of rights or warrants or a
distribution for which an adjustment is required by the provisions of
Section 11.07(4), 11.08 or 11.09 (the "preceding adjustment event")
precedes the record date for the issuance or distribution in respect of
which the Average Market Price is being calculated and the Ex-Dividend Date
for such preceding adjustment event is on or after the Determination Date
for the issuance or distribution in respect of which the Average Market
Price is being calculated, then the Average Market Price shall be adjusted
by deducting therefrom the fair market value (on the record date for the
issuance or distribution in respect of which the Average Market Price is
being calculated), as determined by the Board of Directors, of the capital
stock, rights, warrants, assets or debt securities issued or distributed in
respect of each share of Parent Stock in such preceding adjustment event.
Further, in the event that the Ex-Dividend Date (or in the case of a
subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.07(1), (2), (3) or (5) applies occurs
during the period applicable for calculating the Average Market Price, then
the Average Market Price shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the current
market price of the Parent Stock during such period.
"current market price" of a share of Parent Stock on any day means the
last reported sale price (or, if no sale price is reported, the average of
the high and low bid prices) on such day on the NASDAQ Stock Market or as
quoted by the National Quotation Bureau Incorporated, or if the Parent
Stock is listed on an exchange, on the principal exchange on which the
Parent Stock is listed. In the event that no such quotation is available
for any day, the Board of Directors shall be entitled to determine the
current market price on the basis of such quotations as it considers
appropriate.
"Determination Date" for any issuance of rights or warrants or any
distribution to which Section 11.08 or 11.09 applies means the earlier of
(i) the record date for the determination of stockholders entitled
41
to receive the rights or warrants or the distribution to which such Section
applies and (ii) the Ex-Dividend Date for such rights, warrants or
distribution.
"Ex-Dividend Date" means the date on which "ex-dividend" trading
commences for a dividend, an issuance of rights or warrants or a
distribution to which any of Sections 11.07, 11.08 and 11.09 applies in the
over-the-counter market or on the principal exchange on which the Parent
Stock is then quoted or listed.
Section 11.12. When Adjustment May Be Deferred.
In any case in which this Article shall require that an adjustment shall
become effective immediately after a record date for an event, the Company may
defer until the occurrence of such event (i) issuing to the Holder of any
Security converted after such record date and before the occurrence of such
event the additional shares of Parent Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the shares of
Parent Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such Holder cash or its check in lieu of any
fractional interest to which he is entitled pursuant to Section 11.04;
provided, however, that the Company shall deliver to such Holder a due xxxx or
other appropriate instrument evidencing such Holder's rights to receive such
additional shares of Parent Stock, and such cash, upon the occurrence of the
event requiring such adjustment.
Section 11.13. When Adjustment Is Not Required.
No adjustments in the conversion price or conversion rate need be made unless
the adjustment would require an increase or decrease of at least one percent
(1%) in the initial conversion price or conversion rate. Any adjustment which
is not made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article shall be made to the nearest cent or to
the nearest 1/100th of a share, as the case may be.
No adjustment in the conversion price or conversion rate shall be made
because the Parent issues, in exchange for cash, property or services, shares
of Parent Stock, or any securities convertible into or exchangeable for shares
of Parent Stock, or securities carrying the right to purchase shares of Parent
Stock or such convertible or exchangeable securities.
No adjustment in the conversion price or conversion rate need be made under
this Article for sales of shares of Parent Stock pursuant to a Parent plan
providing for reinvestment of dividends or interest or in the event the par
value of the Parent Stock is changed.
No adjustment in the conversion price or conversion rate need be made for a
transaction referred to in Section 11.07, 11.08 or 11.09 if Securityholders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and
notice on which holders of Parent Stock participate in the transaction;
provided that the basis on which the Securityholders are to participate in the
transaction shall not be deemed to be fair if it would require the conversion
of Securities at any time prior to the expiration of the conversion period
specified for such Securities.
To the extent the Securities become convertible into cash, no adjustment need
be made thereafter as to the cash. Interest will not accrue on the cash.
Section 11.14. Notice of Adjustment.
Whenever the conversion price or conversion rate is adjusted, the Company
shall promptly mail to Securityholders a notice of the adjustment and file with
the Trustee an Officers' Certificate briefly stating the new conversion price
or conversion rate, the date it becomes effective, the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct.
42
Section 11.15. Notice of Certain Transactions.
If:
(1) the Parent takes any action which would require an adjustment in the
conversion price or conversion rate;
(2) the Parent consolidates or merges with, or transfers all or
substantially all of its assets to, another corporation, and stockholders
of the Parent must approve the transaction; or
(3) there is a dissolution or liquidation of the Parent,
a Holder of a Security may want to convert it into shares of Parent Stock prior
to the record date for, or the effective date of, the transaction so that he
may receive the rights, warrants, securities or assets which a holder of shares
of Parent Stock on that date may receive. Therefore, the Company shall mail to
the Securityholders and the Trustee a notice stating the proposed record or
effective date, as the case may be. Failure to mail the notice or any defect in
it shall not affect the validity of any transaction referred to in clause (1),
(2) or (3) of this Section.
Section 11.16. Consolidation, Merger or Sale of the Parent.
If the Parent is a party to a transaction described in Section 5.01 or a
merger which reclassifies or changes its outstanding Parent Stock, the Company
shall enter into a supplemental indenture. The supplemental indenture shall
provide that the Holder of a Security may convert it into the kind and amount
of securities or cash or other assets which he would have owned immediately
after the consolidation, merger or transfer if he had converted the Security
immediately before the effective date of such transaction, assuming (to the
extent applicable) that such Holder failed to exercise any rights of election
with respect thereto and received per share of Parent Stock the kind and amount
of securities, cash or as received per share by a plurality of the non-electing
shares. The supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practical to the adjustments provided for in
this Article. The Company shall mail to each Securityholder a notice describing
the supplemental indenture.
If this Section applies, Sections 11.07, 11.08 and 11.09 shall not apply.
Section 11.17. Company Determination Final.
Any determination which the Board of Directors must make pursuant to Sections
11.07, 11.09, 11.11, 11.13 or 11.16 is conclusive and binding on the Holders.
Section 11.18. Trustee's Disclaimer.
Neither the Trustee nor any Conversion Agent has any duty to determine when
an adjustment under this Article should be made, how it should be made or what
it would be. Neither the Trustee nor any Conversion Agent has any duty to
determine whether any provisions of a supplemental indenture under Section
11.16 are correct. Neither the Trustee nor any Conversion Agent makes any
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. Neither the Trustee nor any Conversion Agent
shall be responsible for the Company's failure to comply with this Article.
Section 11.19. Simultaneous Adjustments.
In the event that this Article Eleven requires adjustments to the conversion
price or conversion rate under more than one of Sections 11.07(4), 11.08 or
11.09, and the record dates for the distributions giving rise to such
adjustments shall occur on the same date, then such adjustments shall be made
by applying, first, the provisions of Section 11.07, second, the provisions of
Section 11.09 and, third, the provisions of Section 11.08.
43
ARTICLE TWELVE
Miscellaneous
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of TIA (S)(S)310 to 317, inclusive, through operation of
TIA (S)318(c), such imposed duties shall control.
Section 12.02. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail addressed as follows:
If to the Company:
TCI Communications, Inc.
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Senior Vice-President--Finance
and Treasurer
If to the Trustee:
Attention:
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to him
at his address as it appears on the registration books of the Registrar and
shall be sufficiently given to him if so mailed within the time prescribed.
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.
Except for a notice to the Trustee, which is deemed given only when received,
if a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S)312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S)312(c).
Section 12.04. 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 stating that, in the opinion of the signers,
all conditions precedent (including any covenants compliance with which
constitutes a condition precedent), if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent (including any covenants compliance with
which constitutes a condition precedent) have been complied with.
44
Section 12.05. Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture (other than
certificates provided pursuant to Section 4.03) 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, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 12.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required aggregate principal amount
of Securities of any series have concurred in any direction, waiver or consent,
Securities of such series owned by the Company or by any Affiliate of the
Company shall be disregarded and treated as not outstanding, 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 knows are so owned shall be so disregarded.
Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of the
Securityholders of all series or any series. The Registrar, Paying Agent or
Conversion Agent may make reasonable rules for its functions.
Section 12.08. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of New York, New York are not required to be open. If
a specified date (including a date for giving notice) or the last day to
convert a Security is a Legal Holiday, any action to be taken on such date
pursuant to this Indenture or the Securities (including such conversion) may be
taken on the next succeeding day that is not a Legal Holiday, and to the extent
applicable, no interest, or original issue discount, as the case may be, shall
accrue for the intervening period.
Section 12.09. Governing Law.
The internal laws of the State of New York shall govern this Indenture and
the Securities.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 12.11. No Recourse Against Others.
No past, present or future director, officer, employee or stockholder, as
such, of the Company or any successor thereof shall have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation and all such liability is hereby waived and released. Such waiver and
release are part of the consideration for the issue of the Securities.
45
Section 12.12. Successors.
All agreements of the Company in this Indenture and the Securities shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
Section 12.13. Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
Section 12.14. Table of Contents, Headings, etc.
The table of contents and the titles 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.
46
Signatures
Dated: , 199
TCI Communications, Inc.
By __________________________________
(Seal)
Attest: _____________________________
Secretary
Dated: , 199
By __________________________________
(Seal)
47
