Exhibit 4.3
FORM OF SUBORDINATED INDENTURE
================================================================================
CENTURY COMMUNICATIONS CORP.
and
-----------------------------------,
Trustee
-------------
INDENTURE
Dated as of ___________,
-------------
Subordinated Debt Securities
================================================================================
TABLE OF CONTENTS
Page
----
PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions................................................ 1
Act........................................................ 2
Affiliate.................................................. 2
Authorized Newspaper....................................... 2
Bank Credit Agreement...................................... 2
Bank Notes................................................. 2
Bank Obligations........................................... 2
Board of Directors......................................... 3
Board Resolution........................................... 3
Business Day............................................... 3
Capital Stock.............................................. 3
Century/Texas.............................................. 3
Closing Price.............................................. 3
Commission................................................. 4
Company.................................................... 4
Company Request; Company Order............................. 4
Corporate Trust Office..................................... 4
corporation................................................ 4
Currency Agreement......................................... 4
Defaulted Interest......................................... 4
Event of Default........................................... 4
GAAP....................................................... 4
Holder..................................................... 5
Indenture.................................................. 5
interest................................................... 5
Interest Payment Date...................................... 5
Interest Swap Obligations.................................. 5
Maturity................................................... 5
New York Presenting Agent.................................. 5
Officers' Certificate...................................... 5
Opinion of Counsel......................................... 5
Original Issue Discount Security........................... 5
Outstanding................................................ 6
Paying Agent............................................... 7
Person..................................................... 7
Place of Payment........................................... 7
Predecessor Security....................................... 7
principal.................................................. 7
principal amount........................................... 8
-i-
Page
----
Redemption Date............................................ 8
Redemption Price........................................... 8
Regular Record Date........................................ 8
Reporting Date............................................. 8
Responsible Officer........................................ 8
Securities................................................. 8
Security Register and Security
Registrar................................................ 8
Senior Indebtedness........................................ 8
Special Record Date........................................ 9
Stated Maturity............................................ 10
Subsidiary................................................. 10
Trustee.................................................... 10
Trust Indenture Act........................................ 10
U.S. Government Obligations................................ 10
Vice President............................................. 10
Section 1.02. Compliance Certificates and
Opinions................................................. 10
Section 1.03. Form of Documents Delivered
to Trustee............................................... 11
Section 1.04. Acts of Holders............................................ 12
Section 1.05. Notices, etc. to Trustee
and Company.............................................. 13
Section 1.06. Notice to Holders; Waiver.................................. 14
Section 1.07. Conflict with Trust Indenture
Act...................................................... 14
Section 1.08. Effect of Headings and Table
of Contents.............................................. 14
Section 1.09. Successors and Assigns..................................... 14
Section 1.10. Separability Clause........................................ 14
Section 1.11. Benefits of Indenture...................................... 15
Section 1.12. Governing Law.............................................. 15
Section 1.13. Legal Holidays............................................. 15
ARTICLE II
SECURITY FORMS
Section 2.01. Forms Generally............................................ 15
Section 2.02. Form of Trustee's Certificate
of Authentication........................................ 16
ARTICLE III
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable
in Series................................................ 16
Section 3.02. Denominations.............................................. 19
-ii-
Page
----
Section 3.03. Execution, Authentication,
Delivery and Dating...................................... 19
Section 3.04. Temporary Securities....................................... 21
Section 3.05. Registration, Registration of
Transfer and Exchange.................................... 21
Section 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.................................... 23
Section 3.07. Payment of Interest; Interest
Rights Preserved......................................... 24
Section 3.08. Persons Deemed Owners...................................... 25
Section 3.09. Cancellation............................................... 26
Section 3.10. Computation of Interest.................................... 26
ARTICLE IV
SUBORDINATION OF SECURITIES
Section 4.01. Securities Subordinate to
Senior Indebtedness...................................... 26
Section 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc........................... 26
Section 4.03. Subrogation................................................ 29
Section 4.04. Obligation of Company
Unconditional............................................ 30
Section 4.05. Payments on Securities Permitted........................... 30
Section 4.06. Payment Subject to Prior Payment
of Amounts Due to Holders of
Senior Indebtedness...................................... 30
Section 4.07. Trustee as Holder of Senior
Indebtedness............................................. 31
Section 4.08. Trustee Entitled to Act to
Effectuate Subordination................................. 31
Section 4.09. Provisions for Benefit of Holders
of Senior Indebtedness................................... 31
Section 4.10. Notice to Trustee to Effectuate
Subordination............................................ 32
Section 4.11. Trustee Has No Fiduciary Duty
to Holders of Senior
Indebtedness............................................. 33
Section 4.12. Modification, Extension, Etc.
of Senior Indebtedness................................... 33
ARTICLE V
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge
of Indenture...................................... 34
Section 5.02. Defeasance................................................. 35
Section 5.03. Application of Trust Money................................. 36
-iii-
Page
----
Section 5.04. Repayment of Moneys Held by
Paying Agent............................................. 36
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default.......................................... 37
Section 6.02. Acceleration of Maturity;
Rescission and Annulment................................. 38
Section 6.03. Collection of Indebtedness and
Suits for Enforcement by
Trustee.................................................. 40
Section 6.04. Trustee May File Proofs of Claim........................... 41
Section 6.05. Trustee May Enforce Claims
Without Possession of Securities......................... 42
Section 6.06. Application of Money Collected............................. 42
Section 6.07. Limitation on Suits........................................ 43
Section 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert.............................. 43
Section 6.09. Restoration of Rights and
Remedies................................................. 44
Section 6.10. Rights and Remedies Cumulative............................. 44
Section 6.11. Delay or Omission Not Waiver............................... 44
Section 6.12. Control by Holders......................................... 45
Section 6.13. Waiver of Past Defaults.................................... 45
Section 6.14. Undertaking for Costs...................................... 45
Section 6.15. Waiver of Stay or Extension Laws........................... 46
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and
Responsibilities......................................... 46
Section 7.02. Notice of Defaults......................................... 48
Section 7.03. Certain Rights of Trustee.................................. 48
Section 7.04. Not Responsible for Recitals
or Issuance of Securities................................ 50
Section 7.05. May Hold Securities........................................ 50
Section 7.06. Money Held in Trust........................................ 50
Section 7.07. Compensation and Reimbursement............................. 50
Section 7.08. Disqualification; Conflicting
Interests................................................ 51
Section 7.09. Corporate Trustee Required;
Eligibility.............................................. 51
Section 7.10. Resignation and Removal;
Appointment of Successor................................. 52
-iv-
Page
----
Section 7.11. Acceptance of Appointment by
Successor................................................ 54
Section 7.12. Merger, Conversion, Consolidation
or Succession to Business................................ 55
Section 7.13. Preferential Collection of
Claims Against Company................................... 55
(a) Segregation and Apportionment
of Certain Collections by
Trustee, Certain Exceptions ....................... 55
(b) Certain Creditor Relationships
Excluded from Segregation
and Apportionment.................................. 58
(c) Definitions of Certain Terms
Used in This Section............................... 59
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.01. Company to Furnish Trustee Names
and Addresses of Holders................................. 60
Section 8.02. Preservation of Information;
Communications to Holders................................ 60
Section 8.03. Reports by Trustee......................................... 62
Section 8.04. Reports by Company......................................... 64
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Company May Consolidate, etc.
Only on Certain Terms.................................... 65
Section 9.02. Successor Corporation Substituted.......................... 65
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Holders....................................... 66
Section 10.02. Supplemental Indentures with
Consent of Holders....................................... 67
Section 10.03. Execution of Supplemental
Indentures............................................... 68
Section 10.04. Effect of Supplemental Indentures.......................... 69
Section 10.05. Conformity with Trust Indenture
Act...................................................... 69
Section 10.06. Reference in Securities to
Supplemental Indentures.................................. 69
-v-
Page
----
ARTICLE XI
COVENANTS
Section 11.01. Payment of Principal, Premium
and Interest............................................. 69
Section 11.02. Maintenance of Office or Agency............................ 69
Section 11.03. Money for Securities Payments
to Be Held in Trust...................................... 70
Section 11.04. Corporate Existence........................................ 72
Section 11.05. Payment of Taxes and Other
Claims................................................... 72
Section 11.06. Maintenance of Properties.................................. 72
Section 11.07. Waiver of Certain Covenants................................ 73
Section 11.08. Statement by Officers as to
Default.................................................. 73
Section 11.09. Further Assurances......................................... 73
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.01. Applicability of Article................................... 74
Section 12.02. Election to Redeem; Notice
to Trustee............................................... 74
Section 12.03. Selection by Trustee of
Securities to Be Redeemed................................ 74
Section 12.04. Notice of Redemption....................................... 75
Section 12.05. Deposit of Redemption Price................................ 76
Section 12.06. Securities Payable on
Redemption Date.......................................... 76
Section 12.07. Securities Redeemed in Part................................ 77
Section 12.08. Securities No Longer
Outstanding After Notice
to Trustee and Deposit
of Cash.................................................. 77
Section 12.09. Conversion Arrangement on
Call for Redemption...................................... 78
ARTICLE XIII
SINKING FUNDS
Section 13.01. Applicability of Article................................... 79
Section 13.02. Satisfaction of Sinking Fund
Payments with Securities................................. 79
Section 13.03. Redemption of Securities for
Sinking Fund............................................. 80
-vi-
Page
----
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Exemption from Individual
Liability................................................ 80
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes of Meetings....................................... 81
Section 15.02. Call of Meetings by Trustee................................ 81
Section 15.03. Call of Meetings by Company or
Holders.................................................. 82
Section 15.04. Qualification for Voting................................... 82
Section 15.05. Quorum; Adjourned Meetings................................. 83
Section 15.06. Regulations................................................ 83
Section 15.07. Voting Procedure........................................... 84
Section 15.08. Written Consent in Lieu of
Meetings................................................. 85
Section 15.09. No Delay of Rights by Meeting.............................. 85
ARTICLE XVI
CONVERSION OF DEBENTURES
Section 16.01. Applicability of Article................................... 85
Section 16.02. Right of Holders to Convert
Securities............................................... 86
Section 16.03. Issuance of Shares of Capital
Stock on Conversion...................................... 87
Section 16.04. No Payment or Adjustment for
Interest or Dividends.................................... 88
Section 16.05. Adjustment of Conversion Rate.............................. 88
Section 16.06. No Fractional Shares
to Be Issued............................................. 93
Section 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance............................... 93
Section 16.08. Notice to Holders of a Series
Prior to Taking Certain
Types of Action.......................................... 94
Section 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities............................................ 96
Section 16.10. Compliance With Governmental
Requirements............................................. 96
-vii-
Page
----
Section 16.11. Payment of Taxes Upon
Certificates for Shares
Issued Upon Conversion................................... 96
Section 16.12. Trustee's Duties With Respect
to Conversion Provisions................................. 96
ARTICLE XVII
MISCELLANEOUS
SECTION 17.01. Counterparts............................................... 97
TESTIMONIUM............................................................... 98
SIGNATURES AND SEALS...................................................... 00
XXXXXXXXXXXXXXX
-xxxx-
XXXXXXXXX, dated as of _______________, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 00
Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000, to _______________________, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in
that Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the possession of the power
to direct or cause the direction of the management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise; and the terms "controlled by" and "under common control
with" have meanings correlative to the foregoing.
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York, and the County of
Suffolk[, the City of Boston, Massachusetts] and customarily published on each
Business Day, currently expected to be The Wall Street Journal (National
Edition). Where successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or different
newspapers meeting the foregoing requirements and in each case on any Business
Day.
"Bank Credit Agreement" means the Eighth Restated Credit
Agreement dated as of July 10, 1990 among Century/ Texas and Century Investors,
Inc. as borrowers, Citibank, N.A. as Agent, and the Lenders named therein, as
the same may be amended.
"Bank Notes" means the promissory notes issued pursuant to the
Bank Credit Agreement.
"Bank Obligations" means all obligations of the Company now or
hereafter existing under its Third Restated Pledge and Guaranty Agreement dated
July 10, 1990 (as the same may be amended, supplemented, modified or restated
from time to time and any renewals and extensions thereof) of the obligations of
Century/Texas under the Bank Credit Agreement and the Bank Notes, whether for
principal, interest (including, without limitation, interest, as provided in the
Bank Notes, accruing after the filing of a petition initiating any proceeding
referred to in Sections 6.01(5) and (6)),
-2-
reimbursement of amounts drawn under letters of credit issued pursuant to the
Bank Credit Agreement, fees, expenses or otherwise.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
"Capital Stock" shall mean, when used to refer to "Capital Stock"
into which Securities of a particular series are convertible, stock of any class
of the Company into which Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 3.01).
"Century/Texas" shall mean Century Communications Corp., a Texas
corporation, a wholly owned subsidiary of the Company.
"Closing Price," on any day when used with respect to any class
of Capital Stock shall mean (i) if the stock is then listed or admitted to
trading on a national securities exchange in the United States, the last
reported sale price, regular way, for the stock as reported in the consolidated
transaction or other reporting system for securities listed or traded on such
exchange, or (ii) if the stock is listed on the National Association of
Securities Dealers, Inc. Automated Quotations System National Market System (the
"NASDAQ National Market System"), the last reported sale price, regular way, for
the stock, as reported on such list, or (iii) if the stock is not so admitted
for trading on any national securities exchange or the NASDAQ National Market
System, the average of the last reported closing bid and asked prices reported
by the National Association of Securities Dealers, Inc. Automated Quotations
System as furnished by any member in good standing of the National Association
of Securities Dealers, Inc., selected from time to time by the Company for the
purpose or as quoted by the National Quotation Bureau incorporated. In the event
that no such quotation is available for any day, the Board of Directors shall be
entitled to determine the current market
-3-
price on the basis of such quotations as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee, ________________________________________________________, at which at
any particular time its corporate trust business shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
-4-
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Interest Swap Obligations" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"New York Presenting Agent" means
_____________________________________________ having offices at
_____________________________________.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of
-5-
acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or
redemption money or, as provided in Section 5.02 hereof, U.S. Government
Obligations, in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or,
except for purposes of Section 5.01, set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and
(iv) Securities converted into Capital Stock in accordance with
Article Sixteen hereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securi-
-6-
ties owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any
day and for any purpose means the amount (including, without limitation, 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 such date and for such 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).
-7-
"principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series
of Securities, the date (and each successive anniversary thereof) established by
a Board Resolution pursuant to Section 3.01 which shall be a date no more than
ten months from the date of the initial issuance of such series of Securities
under this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer assigned to and working in the corporate trust department of
the Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" shall mean (a) the Bank Obligations; (b)
the principal of (and premium, if any) and interest on (i) all other
indebtedness for money borrowed by the Company, whether outstanding on the date
of this Indenture or hereafter created or incurred, (ii) all other indebtedness
for money borrowed by another Person in which the Company has an equity interest
or has the right to purchase an equity interest, and guaranteed in whole or in
part directly or indirectly by the Company (whether such guarantee is
outstanding on the date of this Indenture or hereafter created or incurred), or
(iii) all indebtedness
-8-
constituting purchase money indebtedness for the payment of which the Company is
directly or contingently liable, whether outstanding on the date of this
Indenture or hereafter created or incurred; (c) any obligation of the Company to
purchase or guarantee indebtedness of, to supply funds to or to invest in,
another Person in which the Company has an equity interest or has the right to
purchase an equity interest (whether such obligation is outstanding on the date
of this Indenture or is hereafter created or incurred); (d) any obligation of
the Company to any Person in respect of surety or similar bonds issued by such
Person in connection with entering into, renewing, extending or maintaining any
cable television franchise granted by a governmental authority or any
construction in respect of any cable television system by the Company or any
other Person in which the Company has an equity interest or has the right to
purchase an equity interest; (e) any obligation of the Company to compensate,
reimburse or indemnify an issuer with respect to any letter of credit issued at
the request of or for the account of the Company; (f) any obligation of the
Company under any Interest Swap Obligations or Currency Agreement (other than
any Interest Swap Obligations or Currency Agreement the payments with respect to
which correspond to payments on, or one of the events permitting the early
termination of which is expressly connected to, any indebtedness of the Company
which is expressed to be subordinate to other indebtedness of the Company or to
rank on a parity with the Securities); and (g) all renewals, extensions or
refundings of any such obligations, indebtedness and guarantees; provided,
however, that Senior Indebtedness shall not include the Securities; and,
provided, further, that if, by the terms of the instrument creating or
evidencing any obligation, indebtedness or guarantee referred to in clauses (a),
(b), (c), (d), (e), (f) and (g), above, it is expressly provided that such
obligation, indebtedness or guarantee is subordinate to all indebtedness of the
Company other than the Securities or indebtedness ranking pari passu with the
Securities or is not superior in right of payment to the Securities, such
obligation, indebtedness or guarantee shall not be included as Senior
Indebtedness but shall rank pari passu with the Securities. As used in the
preceding sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other instrument or any
other written obligation to pay money (whether or not secured by any lien or
other security interest) issuer or assumed as all or a part of the consideration
for the acquisition of property, assets or securities whether by purchase,
merger, consolidation or otherwise.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
-9-
"Stated Maturity," when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified in
Section 5.02.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and
Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
(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 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), if any, have been
complied with, except that in
-10-
the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
-11-
or representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.07 and the record so proved
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other
-12-
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company or the Trustee, as applicable, may set a date for
the purpose of determining the Holders of Securities entitled to consent, vote
or take any other action referred to in this Section 1.04, which date shall be
not less than 10 days nor more than 60 days prior to the taking of the consent,
vote or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of the Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
and, unless otherwise herein expressly provided, any such document shall
be deemed to be sufficiently made, given, furnished or filed upon its
receipt by a Responsible Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
-13-
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining
-14-
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and to the extent provided in Article Four
the holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their
-15-
execution of such Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
The Trustee's certificate of authentication shall be in
substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated therein
issued under the within-mentioned Indenture.
___________________________,
as Trustee
By _________________________________
Authorized Signature
ARTICLE III
THE SECURITIES
SECTION 3.01. 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
-16-
Board Resolution, and set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
securities of the series pursuant to Section 3.04, 3.05, 3.06, 10.06 or
12.07);
(3) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed or variable), or the
method of determination thereof, at which the Securities of the series
shall bear interest, if any, including the rate of interest applicable
on overdue payments of principal or interest, if different from the rate
of interest stated in the title of the Security, the date or dates from
which such interest shall accrue or the method of determination thereof,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Interest Payment
Date;
(5) the Paying Agent or Paying Agents for the Securities of the
series if other than the Trustee;
(6) the Place of Payment of the Securities of the series if other
than the Corporate Trust Office of the Trustee;
(7) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof
-17-
and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) 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;
(11) if the provisions of Section 5.02 of this Indenture are to
apply to the Securities of the series, a statement indicating the same;
(12) any deletions from or modifications of or additions to the
Events of Default set forth in Section 6.01 pertaining to the Securities
of the series;
(13) the form of the Securities of the series;
(14) the obligation, if any, of the Company to permit the
conversion of the Securities into Capital Stock and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion 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);
(15) 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, which terms and
provisions are not in conflict with the provisions of this Indenture or
do not adversely affect the rights of Holders of any other series of
Securities then Outstanding); provided, however, that the addition to or
subtraction from or variation of Articles Five, Six, Nine and Eleven
(and Section 1.01 insofar as it relates 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
-18-
constitute a conflict with the provisions of those
Articles; and
(16) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Four. The Securities of all series
shall rank on a parity in right of payment.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, 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 Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. 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 3.01. 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 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
-19-
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, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. 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 the documents specified in Section 314 of the
Trust Indenture Act, and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board
Resolution, certified by the Secretary or Assistant Secretary of the
Company;
(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to Board Resolutions, by a supplemental
indenture or by both such resolution or resolutions and such
supplemental indenture in conformity with the provisions of this
Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company; 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,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles, and will be entitled to the benefits of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will
-20-
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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the
-21-
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of an equal aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any
transfer.
-22-
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
12.03 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
-23-
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
At the option of the Company, interest on the Securities of any
series that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date
-24-
of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Securities
of such series at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
-25-
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be canceled by it
and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered promptly
shall be canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE IV
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of Securities
of any series by his acceptance thereof, whether upon original issue or upon
registration of transfer or assignment, likewise covenants and agrees, that the
indebtedness evidenced by the Securities of such series, including the principal
thereof (and premium, if any) and interest thereon, shall be subordinated and
subject in right of payment, to the extent and in the manner set forth in this
Article, to the prior payment in full of all Senior Indebtedness, whether now
outstanding or hereafter incurred.
SECTION 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc.
Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy,
-26-
insolvency, receivership or other proceedings, or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Company or otherwise:
(a) all principal (and premium, if any) and interest due on all
Senior Indebtedness shall first be paid in full, or payment thereof
provided for in money or money's worth, before the Holders of the
Securities of any series or the Trustee on their behalf shall be
entitled to retain any assets so paid or distributed (other than shares
of stock 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, junior to, or the payment of which is
subordinated at least to the extent provided in this Article to the
payment of, all Senior Indebtedness which may at the time be outstanding
or to any securities issued in respect thereof under any such plan of
reorganization or readjustment) with respect to principal (and premium,
if any) and interest on the Securities of any such series;
(b) upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than shares of stock 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, junior to, or the payment of
which is subordinated at least to the extent provided in this Article to
the payment of, all Senior Indebtedness which may at the time be
outstanding or to any securities issued in respect thereof under any
such plan of reorganization or readjustment), to which the Holders of
Securities of any series or the Trustee on behalf of such Holders would
be entitled, except for the provisions of this Article, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution
directly to the holders of Senior Indebtedness (pro rata to each such
holder on the basis of the respective amounts of Senior Indebtedness
held by each such holder) or their representatives, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or
-27-
distribution is made to the Holders of Securities of any series; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than shares of stock 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, junior to, or the payment of which is subordinated at
least to the extent provided in this Article to the payment of, all
Senior Indebtedness which may at the time be outstanding or to any
securities issued in respect thereof under any such plan of
reorganization or readjustment), shall be received by the Trustee, any
Paying Agent or the Holders of Securities of any series before all
Senior Indebtedness is paid in full, such payment or distribution shall
be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued (pro rata to each such holder as
aforesaid) for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
(d) The consolidation or merger of the Company with or into
another corporation, or any consolidation or merger of any other
corporation with or into the Company, or the liquidation or dissolution
of the Company following the sale, transfer or lease of substantially
all of the property and assets of the Company to another corporation
shall not be deemed a dissolution, winding-up or total or partial
liquidation or reorganization of the Company or an assignment or other
marshalling of the assets and liabilities of the Company for purposes of
this Section 4.02 so long as such other corporation, as a part of any
such consolidation, merger, sale, conveyance or lease, shall comply with
the conditions stated in Article Nine.
-28-
SECTION 4.03. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of Securities of any series shall be subrogated pro rata (based on the
respective amounts paid over for the benefit of the holders of Senior
Indebtedness) with the Holders of Securities of each other series and any other
subordinated indebtedness of the Company which by its terms ranks on a parity in
right of payment with the Securities (the Securities and such other subordinated
indebtedness being in this Section referred to as "parity indebtedness") to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Securities of each
series shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities of any series or
the holders of other parity indebtedness, or the Trustee or the trustee with
respect to any parity indebtedness, would be entitled except for the provisions
of this Article shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities of any series
and the holders of other parity indebtedness, be deemed to be a payment by the
Company to or on account of the Securities, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of any series and
the holders of other parity indebtedness on the one hand and the holders of
Senior Indebtedness on the other hand.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, any Paying Agent and the Holders shall
be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending or upon a certificate of the liquidating
trustee or agent or other person making any payment or distribution to the
Trustee, any Paying Agent or the Holders of Securities of any series for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness 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.
-29-
SECTION 4.04. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture,
or in the Securities of any series, is intended to or shall alter or impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders the principal of (and premium, if any)
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 and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holders from exercising all remedies otherwise permitted by
applicable law upon an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company otherwise payable or
delivered to the Trustee or the Holders upon the exercise of any such remedy.
SECTION 4.05. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture,
or in the Securities of any series, shall affect the obligation of the Company
to make, or prevent the Company from making, at any time except (i) during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding referred to in Section 4.02, and (ii) during the continuance of any
default specified in Section 4.06, payments at any time of principal of (and
premium, if any) or interest on the Securities of any series or of amounts to be
available as a sinking fund or analogous obligation for the Securities of any
series.
SECTION 4.06. Payment Subject to Prior Payment of Amounts
Due to Holders of Senior Indebtedness.
No direct or indirect payment by or on behalf of the Company on
account of the principal of (and premium, if any) or interest on Securities of
any series shall be made if, at the time of such payment, there exists a default
in the payment of all or any portion of principal of (and premium, if any) or
interest on any Senior Indebtedness (and the Trustee has received written notice
thereof), and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Senior
Indebtedness.
The restrictions in this Article on payments on account of the
principal of (and premium, if any) and interest on the Securities of any series
shall include, without
-30-
limitation, payments of principal (and premium, if any) upon mandatory or
optional redemptions, redemptions through the operation of and deposits for the
sinking fund or analogous obligations and purchases of Securities of any series
by the Company; provided, however, that nothing in this Section shall prevent
(a) any payment being made in connection with a redemption of Securities of any
series if (i) notice of such redemption has been given pursuant to Section 12.04
and (ii) prior to the time of the mailing of such notice of redemption the
Trustee shall not have received notice of any default specified in the first
paragraph of this Section with respect to any Senior Indebtedness or notice to
the effect that any such default will exist at the date fixed for such
redemption or as a result of such redemption; or (b) the application by the
Trustee or any Paying Agent of any amounts deposited, at least three Business
Days prior to the occurrence of any payment default or the receipt of notice by
the Trustee of any other default specified in the first paragraph of this
Section, with the Trustee or such Paying Agent in trust for the purpose of
paying a specified instalment or installments of interest on the Securities of
any series, to the payment of such instalment of interest.
SECTION 4.07. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.08 or elsewhere in this Indenture shall be construed to deprive the Trustee of
its rights as such holder.
SECTION 4.08. Trustee Entitled to Act to
Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.09. Provisions for Benefit of Holders
of Senior Indebtedness.
The provisions of this Article constitute a continuing offer to
all persons who in reliance upon such provisions become holders of Senior
Indebtedness. Such provisions are made for the benefit of the holders of Senior
Indebtedness and such holders are hereby made obligees hereunder to the same
extent as if their names were written
-31-
herein as such, and they or each of them may proceed to enforce such provisions.
In furtherance of the foregoing, each holder of Senior
Indebtedness (i) is hereby irrevocably authorized and empowered but shall not be
obligated to demand, xxx for, collect, receive and receipt for such holder's
ratable share of all payments and distributions in respect of the Securities
which are required to be paid or delivered to holders of Senior Indebtedness as
provided herein, and to file and prove all such claims and take all such other
action in the name of the Holders or otherwise, as such holder of Senior
Indebtedness may determine to be necessary or appropriate for the enforcement of
the rights provided herein, and (ii) may require the delivery to him by each
Holder of such other instruments confirming such authorization and such powers
of attorneys, proofs of claim, assignments of claim and other instruments, and
the taking of all such other action, as he may request in order to enable such
holder of Senior Indebtedness to enforce such holder's ratable share of all
Securities and all such payments and distributions in respect thereof.
No present or future holder of Senior Indebtedness shall be
prejudiced in any way in the rights of such holder to enforce subordination of
the Securities of all series by any act or failure to act on the part of the
Company or any such holder. Until all Senior Indebtedness has been paid in full,
no Holder of Securities of any series shall agree to, and the Company shall not
accept, any release, cancellation, discharge or forgiveness of any Securities of
such Holder.
SECTION 4.10. Notice to Trustee to Effectuate
Subordination.
The Company shall give prompt written notice to the Trustee of
any dissolution or winding-up or total or partial liquidation or reorganization
of the Company within the meaning of Section 4.02, or of the existence of any
default specified in Section 4.06. Notwithstanding any of the provisions of this
Article or any other provision of this Indenture, 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, or the taking of any
other action by the Trustee pursuant to this Article, unless and until the
Trustee shall have received written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any trustee therefor; and, prior
to the receipt of any such written notice the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that, (i) except
as otherwise provided in this Section or in Section 4.05 or 4.06, if prior to
three Business Days before
-32-
the date upon which by the terms hereof any such payment of the principal of
(and premium, if any) or interest on any Security shall be due and payable, the
Trustee shall not have received the notice provided for in this Section, then
the Trustee and any Paying Agent shall have full power and authority to receive
such payment and to apply the same to the purpose for which it was received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date; and (ii) if prior to the time of the mailing of notice of
redemption of any Securities pursuant to Section 12.04 the Trustee shall not
have received such notice, then, anything contained in this Article to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive any payment and to apply the same to the redemption of such Securities,
and shall not be affected by any notice to the contrary which may be received by
it on or after such time of mailing. The Trustee and any Paying Agent shall be
entitled to rely conclusively on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness or a trustee
on behalf of such holder to establish that the notice provided for in this
Section was given by a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders.
SECTION 4.11. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness. The Trustee shall not
be liable to any holder of Senior Indebtedness if the Trustee shall mistakenly,
but in good faith, pay over or transfer to Holders, the Company or any other
Person money or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article.
SECTION 4.12. Modification, Extension, etc.
of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of (and premium, if
any) and interest on the Securities of any series, at any time or from time to
time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument pursuant to which any Senior
-33-
Indebtedness is issued, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
or the Trustee.
ARTICLE V
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 11.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation (other than
-34-
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06), for principal (and
premium, if any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 5.03 and the
last paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Company shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S.
Government Obligations (as defined below) as will, or will together with the
income thereon without consideration of any reinvestment thereof, be sufficient
to pay all sums due for the principal of (and premium, if any) and interest, if
any, on the Securities of such series, as they shall become due from time to
time, and shall pay all costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) the Company's obligations, as the
case may be, with respect to Securities of such series under Sections 3.05, 3.06
and 11.02, (ii) rights of Holders to receive payments of the principal of (and
premium, if any) and interest, if any, on the Securities of such series as they
shall become due from time to time and other rights, duties and obligations of
Holders as beneficiaries hereof with respect to the amounts so deposited with
the Trustee, (iii) rights of conversion of any Security, the terms of which
provide for conversion (which shall continue in full force and effect pursuant
to the terms set forth in Article Sixteen to the extent provided for in such
terms), and (iv)
-35-
the rights, obligations and immunities of the Trustee hereunder (for which
purposes the Securities of such series shall be deemed outstanding)), and the
Trustee, on the written request of the Company, accompanied by the Officer's
Certificate and Opinion of Counsel required by Section 1.02, shall execute and
deliver to the Company such instruments as shall be requisite to evidence the
satisfaction thereof with respect to Securities of such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03,
all money deposited with the Trustee pursuant to Sections 5.01 and 5.02 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for two years and eleven
months after the date upon which the principal of or interest on such Securities
shall have become due and payable shall be repaid to the
-36-
Company by the Trustee or any such other Paying Agent and such holders shall
thereafter be entitled to look to the Company only as general creditors for
payment thereof (unless otherwise provided by law); provided, however, that,
before the Trustee or any such other Paying Agent is required to make any such
payment to the Company, the Trustee may, upon the request of the Company and at
the expense of the Company, cause to be published once in an Authorized
Newspaper a notice that such money remains unclaimed and that, after the date
set forth in said notice, the balance of such money then unclaimed will be
returned to the Company.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days (whether or not such default shall be by reason
of the operation of the provisions of Article Four); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity (whether or not
such default shall be by reason of the operation of the provisions of
Article Four); or
(3) default in the deposit of any sinking fund payment or
analogous obligation, when and as due by the terms of any Security of
that series (whether or not such default shall be by reason of the
operation of the provisions of Article Four); or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of that series
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this
-37-
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 90
days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
-38-
due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare 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 that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable, anything in this Indenture or in any of the
Securities of such series to the contrary notwithstanding; provided, however,
that payment of principal of (and premium, if any) and interest on the
Securities of such series shall remain subordinated to the extent provided in
Article Four.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
-39-
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days,
(2) default is made in the payment of the principal of (or,
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant
to the terms of any Security,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree
-40-
and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect
of the Securities and to file such other papers or documents and take
such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such
matter, as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claim and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
-41-
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding except as
aforesaid, to vote for the election of a trustee in bankruptcy or similar person
or to participate as a member, voting or otherwise, on any committee of
creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Subject to the provisions of Article Four, any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
-42-
THIRD: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
-43-
SECTION 6.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment (subject to the provisions of Article Four) of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), the right, which is also absolute and
unconditional, to require the conversion of his Securities pursuant to Article
Sixteen hereof if the terms of such Securities provide for convertibility
pursuant to Section 3.01 and the right to institute suit for the enforcement of
any such payment or of such right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any
-44-
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 6.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders of the Securities of such
series not taking part in such direction, or to the Holders of the
Securities of any other series, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
-45-
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations
-46-
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture but need not verify the accuracy of the contents thereof or
whether procedures specified by or pursuant to the provisions of this
Indenture have been followed in the preparation thereof.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
6.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the
-47-
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund or analogous obligation instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
-48-
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
-49-
(h) The Trustee shall not be deemed to have notice or knowledge
of any matter unless a Responsible Officer assigned to and working in
the Trustee's corporate trust department has actual knowledge thereof or
unless written notice thereof is received by the Trustee at the
Corporate Trust Office and such notice references the Securities
generally, the Company or this Indenture. Whenever reference is made in
this Indenture to an Event of Default, such reference shall, insofar as
determining any liability on the part of the Trustee is concerned, be
construed to refer only to an Event of Default of which the Trustee is
deemed to have knowledge in accordance with this paragraph; and
(i) The permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed
as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 7.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 7.08 and 7.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder.
SECTION 7.07. Compensation and Reimbursement.
The Company agrees
-50-
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses, including reasonable attorneys' fees, of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of particular Securities.
SECTION 7.08. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded this Indenture with respect to Securities of any particular series of
Securities other than that series. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000, subject to
supervision
-51-
or examination by Federal or State authority and having its Corporate Trust
Office in the Borough of Manhattan, The City of New York or the County of
Suffolk, the City of Boston, Massachusetts. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 10 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
-52-
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (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) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
-53-
series by mailing written notice of such event to all Holders of Securities of
such series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other
-54-
such Trustee; and upon execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within
-55-
three months prior to a default, as defined in subsection (c) of this Section,
or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the Holders of the Securities and the holders of
other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
-56-
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other
-57-
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this
-58-
Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in subsection
(c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
-59-
(4) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the Securities at
the time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, either (i) not later than June 1 and November
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, or
(ii) not more than 15 days after each Regular Record Date in the case of
Securities of any other series, a list, each in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding June 1 or November 1 or as
of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar with
respect to Securities of any series, no such lists need be furnished.
-60-
SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the informa-
tion preserved at the time by the Trustee in accordance
with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 8.02(a) a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
or would be in violation of applicable law. Such written statement shall
-61-
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held responsible by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 8.02(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring
subsequent to the initial issuance of Securities hereunder and within 60 days
after each Reporting Date occurring thereafter, the Trustee shall transmit by
mail to the Holders, as hereinafter provided, a brief report (but in no event
shall such report be transmitted more than twelve months after the date of the
initial issuance of the Securities in the case of the first such report and at
stated intervals of more than twelve months in the case of each subsequent
report) dated as of such Reporting Date with respect to any of the following
events which may have occurred during the twelve months preceding the date of
such report (but if no such event has occurred within such period, no report
need be transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date
-62-
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding for which it is Trustee
on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
7.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding for which it is
Trustee at such time, such report to be transmitted within 90 days after such
time.
-63-
(c) All reports required by this Section 8.03, and all other
reports or notices which are required by any other provision of this Indenture
to be transmitted in accordance with the provisions of this Section 8.03, shall
be transmitted by mail: (i) to all registered Holders, as their names and
addresses appear in the Security Register; (ii) to such Holders of such series
as have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
-64-
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
and
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of the
properties and assets of the
-65-
Company substantially as an entirety in accordance with Section 9.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities pursuant to Article Nine and to
provide for the adjustment of conversion rights pursuant to Section
16.07; or
(2) 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; or
(3) 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); or
(4) to add to 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 (so long as any "registration-required
obligation" within the meaning
-66-
of section 163(f)(2) of the Internal Revenue Code of
1986, as amended, is in registered form for purposes of
such section); or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on,
-67-
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
alter or impair the right to convert any Security at the rate and upon
the terms provided for in this Indenture or the form of such Security,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02, or
adversely affect any right of repayment at the option of the Holder of
any Security, or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
Notwithstanding the foregoing, no consent of the Holders shall be necessary to
permit the execution of supplemental indentures pursuant to Section 16.07. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
-68-
SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee in its sole discretion may, but shall not be obligated
to, enter into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE XI
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders
of Securities of each series that it will duly and punctually pay the principal
of (and premium, if
-69-
any) and interest, if any, on the Securities of that series in accordance with
the terms of the Securities of that series and this Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where the Securities may be presented for payment
or, for Securities of each series that is convertible, for conversion. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee or the office of the New York Presenting Agent, and the Company hereby
jointly appoints the Trustee and the New York Presenting Agent as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 11.03. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Company (or by any
other obligor on the Securities of that series) to make any
-70-
payment of the principal of (and premium, if any) or interest, if any, on the
Securities of such series when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the
Trustee for any series of Securities, it will cause such Paying Agent to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on the Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
-71-
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request subject to
applicable abandoned property and escheat law, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two consecutive
weeks (in each case on any day of the week) in an Authorized Newspaper notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, 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 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements,
-72-
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of any
of its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders of the Securities of any series.
SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 11.04, 11.05 and 11.06,
with respect to the Securities of any series, if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each fiscal
year, commencing with the first fiscal year following the issuance of Securities
of any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial 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 11.08,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
-73-
SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee,
the Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. 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.
SECTION 12.03. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate 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 of a denomination larger than the minimum
authorized denomination
-74-
for Securities of that series; provided, however, that Securities of such series
registered in the name of the Company shall be excluded from any such selection
for redemption until all Securities of such series not so registered shall have
been previously selected for redemption. For the purposes of such selection in
case of redemption of less than all the Securities of any series, the Trustee
and the Company shall have the option to treat as Outstanding Securities any
Securities of such series which are surrendered for conversion after the
fifteenth day immediately preceding the mailing of notice of such redemption,
and need not treat as Outstanding Securities any Securities authenticated and
delivered during such period in exchange for the unconverted portion of any
Securities converted in part during such period.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
Notice of redemption shall be given not less than 10 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
-75-
(5) if applicable, the current conversion price or rate,
(6) if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other day as may be specified
as contemplated by Section 3.01 for Securities of any series),
(7) if applicable, that Holders who want to convert Securities
called for redemption must satisfy the requirements for conversion
contained in such Securities,
(8) that, subject to Section 16.04, interest, if any, accrued to
the date fixed for redemption will be paid as specified in said notice,
(9) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(10) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. No such notice shall
be given at any time when the Company or the Trustee shall have received notice
that there exists a default specified in the first paragraph of Section 4.06 or
that such a default will exist at the date fixed for such redemption or as a
result of such redemption.
SECTION 12.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities of such series
called for redemption on such date which have been converted prior to the date
of such deposit.
SECTION 12.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemp-
-76-
tion Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. The right to convert such Securities or portions thereof, if the terms
of such Securities provide for conversion pursuant to Section 3.01, shall
terminate at the close of business on the Redemption Date or such other day as
may be specified as contemplated by Section 3.01 for Securities of such series.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
subject to Section 16.04, installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Security called for redemption pursuant to Section 12.01
is converted pursuant to Article Sixteen, any monies deposited with the Trustee
for the purpose of paying or redeeming any such Security shall be promptly paid
to the Company.
SECTION 12.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the security so surrendered. Securities in denominations larger than $1,000 may
be redeemed in part, but only in whole multiples of $1,000.
-77-
SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any Securities of any series or portions thereof
called for redemption in whole or in part cash or other form of payment if
permitted by the terms of such Securities (which amount shall be immediately due
and payable to the Holders of such Securities or portions thereof) in the amount
necessary so to redeem all such Securities or portions thereof on the Redemption
Date and provision satisfactory to the Trustee shall have been made for the
giving of notice of such redemption, such Securities or portions thereof, shall
thereupon, for all purposes of this Indenture, be deemed to be no longer
Outstanding, and the Holders thereof shall be entitled to no rights thereunder
or hereunder, except the right to receive payment of the Redemption Price,
together with interest accrued to the Redemption Date, on or after the
Redemption Date of such Securities or portions thereof and the right to convert
such Securities or portions thereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01 at or prior to the close of business on
the Redemption Date.
SECTION 12.09. 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 or the Paying Agent in trust
for the Holders, on or before 10:00 a.m. New York time on the Redemption Date,
an amount no less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, 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 Sixteen) 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
-78-
called for redemption may be converted in accordance with this Indenture and the
terms of such Securities, subject to payment of the above amount aforesaid. The
Trustee or the Paying Agent shall hold and pay to the 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 and the Paying Agent'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 or the Paying
Agent as set forth in this Indenture, and the Company agrees to indemnify the
Trustee and the Paying Agent from, and hold them 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 and the
Paying Agent in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE XIII
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for
-79-
redemption) and (2) may apply as a credit Securities of a series which have been
redeemed 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, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited or converted pursuant to the terms of such
Securities. 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.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution,
-80-
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers or directors, as such, of the Company
or of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be
called at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken
by the Holders of Securities pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified percentage in aggregate principal
amount of the Securities of all or any series, as the case may be,
-81-
under any other provision of this Indenture or under
applicable law.
SECTION 15.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of all or any series to take any action specified in Section 15.01,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, as the Trustee shall determine. Notice of every meeting of the
Holders of Securities of all or any series, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given to all Holders of Securities of each series that may be
affected by the action proposed to be taken at such meeting by publication at
least twice in an Authorized Newspaper prior to the date fixed for the meeting,
the first publication to be not less than 20 nor more than 180 days prior to the
date fixed for the meeting, and the last publication to be not more than five
days prior to the date fixed for the meeting, or such notice may be given to
Holders by mailing the same by first class mail, postage prepaid, to the Holders
of Securities at the time Outstanding, at their addresses as they shall appear
in the Security Register, not less than 20 nor more than 60 days prior to the
date fixed for the meeting. Failure to receive such notice or any defect therein
shall in no case affect the validity of any action taken at such meeting. Any
meeting of Holders of Securities of all or any series shall be valid without
notice if the Holders of all such Securities Outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 15.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of each series that may be affected by the action proposed to be
taken at the meeting shall have requested the Trustee to call a meeting of
Holders of Securities of all series that may be so affected to take any action
authorized in Section 15.01 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or made the first publication of the notice of such meeting within
30 days after receipt of such request, then the Company or the Holders in the
amount above specified may determine the time and the place in the Borough of
Manhattan, The City of New York for such meeting and may call such meeting by
mailing or publishing notice thereof as provided in Section 15.02.
-82-
SECTION 15.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall
(a) be a Holder of one or more Securities of a series affected by the action
proposed to be taken, or (b) be a Person appointed by an instrument in writing
as proxy by the Holder of one or more such Securities. The right of Holders to
have their votes counted shall be subject to the proviso in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 15.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the case of mailing, such notice may be
mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in
writing complying with the provisions of Section 1.04 shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided, however, that such Holder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the
Holders of Securities of any series duly held
-83-
in accordance with this Section shall be binding on all Holders of such series
of Securities whether or not present or represented at the meeting.
SECTION 15.06. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.03, in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to
vote at such meeting, or proxy therefor, shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 15.02 or 15.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 15.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballot on which shall be subscribed the signatures of the
Holders of Securities entitled to vote at such meeting, or proxies therefor, and
on which shall be inscribed an identifying number or numbers or to which shall
be attached a list of identifying numbers of the Securities so held or
represented by them. The
-84-
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders of Securities shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed or published as provided in Section 15.02 and, if applicable, Section
15.05. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the
requisite percentage in aggregate principal amount of Securities of any series
herein provided, entitled to vote at any such meeting, evidenced as provided in
Section 1.04 and filed with the Trustee, shall be effective in lieu of a meeting
of the Holders of Securities of such series, with respect to any matter provided
for in this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
-85-
ARTICLE XVI
CONVERSION OF DEBENTURES
SECTION 16.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock
at the option of the Holder shall be convertible in accordance with their terms
and (unless otherwise specified as contemplated by Section 3.01 for Securities
of any series) in accordance with this Article. Each reference in this Article
Sixteen to "a Security" or "the Securities" refers to the Securities of the
particular series that is convertible into Capital Stock. If more than one
series of Securities with conversion privileges are outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
SECTION 16.02. Right of Holders to
Convert Securities.
Subject to and upon compliance with the terms of the Securities
and the provisions of Section 12.09 and this Article Sixteen, at the option of
the Holder thereof, any Security of any series of any authorized denomination,
or any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date except that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such right shall terminate upon
receipt of written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the Capital
Stock into which such Security is convertible as specified in such Security, at
the conversion rate for each $1,000 principal amount of Securities in effect on
the conversion date (such conversion rate reflecting the initial conversion rate
specified in such Security or, in case an adjustment in the conversion rate has
taken place pursuant to the provisions of Section 16.05, then at the applicable
conversion rate as so adjusted) upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 11.02, accompanied by a written notice
of election to convert as provided in Section 16.03 and, if so required by the
Company
-86-
and the Trustee, by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by the registered
Holder or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and canceled by it, or shall, if
surrendered to the Trustee, be canceled by it, as provided in Section 3.09.
The initial conversion rate in respect of a series of Securities
shall be as specified in the Securities of such series. The conversion rate will
be subject to adjustment on the terms set forth in Section 16.05 or such other
or different terms, if any, as may be specified by Section 3.01 for Securities
of such series. Provisions of this Indenture that apply to conversion of all of
a Security also apply to conversion of a portion of it.
SECTION 16.03. Issuance of Shares of
Capital Stock on Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Company shall
deliver or cause to be delivered at its said office or agency to or upon the
written order of the Holder of the Security or Securities so surrendered a
certificate or certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Capital Stock into which such
Security or Securities may be converted in accordance with the terms thereof and
the provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Company or the Trustee, the
rights of the Holder of such Security or Securities as a Holder shall cease at
such time, the person or persons entitled to receive the shares of Capital Stock
upon conversion of such Security or Securities shall be treated for all purposes
as having become the record holder or holders of such shares of Capital Stock at
such time and such conversion shall be at the conversion
-87-
rate in effect at such time. In the case of any Security of any series which is
converted in part only, upon such conversion, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, as requested by
such Holder, a new Security or Securities of such series of authorized
denomination in aggregate principal amount equal to the unconverted portion of
such Security.
If the last day on which a Security may be converted is not a
Business Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for
shares of Capital Stock upon conversion while its stock transfer books are
closed for a meeting of shareholders or for the payment of dividends or for any
other purpose, but certificates for shares of Capital Stock shall be delivered
as soon as the stock transfer books shall again be opened.
SECTION 16.04. No Payment or Adjustment
for Interest or Dividends.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date for payment of defaulted interest) next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such Interest Payment Date;
provided, however, that if the Company shall default in the payment of said
interest, such funds shall be returned to the payer thereof. Payment of interest
shall be made, as of such Interest Payment Date or such date, as the case may
be, to the Holder of record as of such Regular, or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of shares of Capital
Stock into which such Security is convertible delivered by the Company to the
Holder thereof shall be applied, first, to pay the accrued original issue
discount attributable to the period from the date of
-88-
issuance to the date of conversion of such Security, and, second, to pay the
balance of the principal amount of such Security.
SECTION 16.05. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution in the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares of the class of Capital Stock into which Securities of such series
are convertible (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the Holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (d) below) on the date on
-89-
which such issuance was declared or otherwise announced by the Company (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the number of shares of such class of Capital Stock
outstanding on the Determination Date plus the number of additional shares of
such class of Capital Stock offered for subscription or purchase (or in the case
of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Company owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and to the extent that shares of such
class of Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration of such
rights or warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the expiration of
the conversion right of such securities) the conversion rate shall be readjusted
to the conversion rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants (or securities convertible into
shares) been made upon the basis of delivery of only the number of shares
actually delivered. In the event that such rights or warrants are not so issued,
the conversion rate shall again be adjusted to be the conversion rate which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the class of Capital Stock into which
Securities of such series are
-90-
convertible (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation) of
evidences of its indebtedness or assets (excluding any cash dividends paid from
retained earnings and dividends payable in Capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or warrants
(excluding subscription rights or warrants to purchase the class of Capital
Stock into which Securities of such series are convertible), the number of
shares of such class of Capital Stock into which each $1,000 principal amount of
Securities of such series shall be convertible after such record date shall be
determined by multiplying the number of shares of such class of Capital Stock
into which such principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair
market value of the assets of the Company, after deducting therefrom all
liabilities of the Company and all preferences (including accrued by unpaid
dividends) in respect of classes of Capital Stock having a preference with
respect to the assets of the Company over such class of Capital Stock (all as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a certificate signed by the Chairmen of the Board, the
President, any Vice President, the Treasurer or the Controller of the Company,
filed with the Trustee and each conversion agent) on such record date, and of
which the denominator shall be such fair market value after deducting therefrom
such liabilities and preferences, less the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive, and described
in a statement filed with the Trustee and each conversion agent) of the assets
or evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above
and Section 16.06, the current market price per share of the Capital Stock on
any date as of which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business Days commencing 45 Business Days
before such date.
(e) No adjustment in the conversion rate shall be required unless
such adjustment would require a cumulative increase or decrease of at least 1%
in such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment,
-91-
and provided, further, that adjustments shall be required and made in accordance
with the provisions of this Article Sixteen (other than this subsection (e)) not
later than such time as may be required in order to preserve the tax-free nature
of a distribution for United States income tax purposes to the Holders of
Securities or the class of Capital Stock into which such Securities are
convertible. All calculations under this Article Sixteen shall be made to the
nearest cent or to the nearest one-thousandth of a share, as the case may be.
Anything in this Section 16.05 to the contrary notwithstanding, the Company
shall be entitled to make such adjustments in the conversion rate, in addition
to those required by this Section 16.05, as it in its discretion shall determine
to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable for United States income tax
purposes.
(f) Whenever the conversion rate is adjusted, as herein provided,
the Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Securities of such series
pursuant to Section 11.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Holder of such
series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders of such
series, as their names and addresses appear upon the Security Register.
(g) In the event that at any time, as a result of shares of any
other class of Capital Stock becoming issuable in exchange or substitution for
or in lieu of shares of the class of Capital Stock into which such Securities
are convertible or as a result of an adjustment made pursuant to subsection (a)
above, the Holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company other than
shares of the class of Capital Stock into which the Securities of such series
are convertible, thereafter the number of such other shares so receivable upon
conversion of
-92-
any Security shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
class of Capital Stock into which the Securities of such series are convertible
contained in subsections (a) to (f), inclusive, above, and the provisions of
this Article Sixteen with respect to the class of Capital Stock into which the
Securities of such series are convertible shall apply on like terms to any such
other shares.
(h) The conversion rate with respect to any Original Issue
Discount Securities, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Securities for accrued
original issue discount.
(i) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions of this
Section 16.05 shall apply separately to events affecting each such class.
SECTION 16.06. No Fractional Shares
to Be Issued.
No fractional shares of Capital Stock shall be issued upon
conversions of Securities. If more than one Security of any series shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so surrendered.
Instead of a fraction of a share of Capital Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction of
a share in an amount equal to the same fractional interest of the current market
price (as defined in Section 16.05) per share of Capital Stock on the Business
Day next preceding the day of conversion.
SECTION 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance.
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in the case of any sale or
transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or
-93-
the corporation which shall have acquired such assets, as the case may be, shall
execute and deliver to the Trustee, a supplemental indenture, subject to the
provisions of Articles Nine and Ten as they relate to supplemental indentures,
providing that the Holder of each Security then Outstanding of a series which
was convertible into Capital Stock shall have the right thereafter to convert
such Security into the kind and amount of shares of stock and other securities
and property, including cash, receivable upon such consolidation, merger, sale
or transfer by a holder of the number of shares of Capital Stock of the Company
into which such Securities might have been converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental indenture shall
conform to the provisions of the Trust Indenture Act of 1939 as then in effect
and shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Sixteen. Neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Holders upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 7.01, may accept
as conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 16.07 shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.08. Notice to Holders of a
Series Prior to Taking
Certain Types of Action.
With respect to the Securities of any series, in case:
(a) the Company shall authorize the issuance to all holders of
the class of Capital Stock into which Securities of such series are
convertible of rights or warrants to subscribe for or purchase shares of
its Capital Stock or of any other right;
-94-
(b) the Company shall authorize the distribution to all holders
of the class of Capital Stock into which Securities of such series are
convertible of evidences of its indebtedness or assets (except for the
exclusions with respect to certain dividends set forth in Section
16.05(c));
(c) of any subdivision, combination or reclassification of the
class of Capital Stock into which Securities of such series are
convertible or of any consolidation or merger to which the Company is a
party and for which approval by the shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 11.02, and shall cause to be mailed to the Holders of such
series, at their last addresses as they shall appear upon the Security Register,
at least ten days prior to the applicable record date hereinafter specified, a
notice stating (i) the date as of which the holders of such class of Capital
Stock to be entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of such class of Capital
Stock shall be entitled to exchange their Capital Stock of such class for
securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 16.08 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
-95-
SECTION 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 16.10. Compliance With Governmental
Requirements.
The Company covenants that if any shares of Capital Stock
required to be reserved for purposes of conversion of Securities hereunder
require registration or listing with or approval of any governmental authority
under any Federal or State law, pursuant to the Securities Act of 1933, as
amended, or the Securities Exchange Act, or any national or regional securities
exchange on which such Capital Stock is listed at the time of delivery of any
shares of such Capital Stock, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion.
The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such name as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security
-96-
converted, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 16.12. Trustee's Duties With Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the conversion rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversions, and the Trustee, subject to the provisions of
Section 7.01, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article Sixteen.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.01. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-97-
___________________________________ hereby accepts the trusts
in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Attest: CENTURY COMMUNICATIONS CORP.
__________________________ By____________________________
Secretary
Attest: ___________________________
_________, as Trustee
___________________________ By____________________________
-00-
XXXXX XX XXX XXXX )
: ss.:
COUNTY OF NEW YORK )
On the day of , ,
before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of CENTURY COMMUNICATIONS CORP.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
____________________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , ,
before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of
___________________________________, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
____________________________________
Notary Public
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of ,
and
Trust Indenture Act of 1939, as amended
Trust Indenture Indenture
Act Section Section
--------------- ---------
310(a)(1)....................................................... 7.09
(a)(2)....................................................... 7.09
(a)(3)....................................................... Not applicable
(a)(4)....................................................... Not applicable
(b).......................................................... 7.08, 7.10
311(a).......................................................... 7.13(a)
(b).......................................................... 7.13(b)
312(a).......................................................... 8.01, 8.02(a)
(b).......................................................... 8.02(b)
(c).......................................................... 8.02(c)
313(a).......................................................... 8.03(a)
(a)(4)....................................................... 11.08
(b)(1)....................................................... Not applicable
(b)(2)....................................................... 8.03(b)
(c).......................................................... 8.03(c)
(d).......................................................... 8.03(c)
314(a).......................................................... 8.04
(b).......................................................... Not applicable
(c)(1)....................................................... 1.02
(c)(2)....................................................... 1.02
(c)(3)....................................................... Not applicable
(d).......................................................... Not applicable
(e).......................................................... 1.02
315(a).......................................................... 7.01(a)
(b).......................................................... 7.02,
8.03(a)(6)
(c).......................................................... 7.01(b)
(d)(1)....................................................... 7.01(a)
(d)(2)....................................................... 7.01(c)
(d)(3)....................................................... 7.01(c)
(e).......................................................... 6.14
316(a)(1)(A).................................................... 6.12
(a)(1)(B).................................................... 6.13
(a)(2)....................................................... Not applicable
(b).......................................................... 6.08
317(a)(1)....................................................... 6.03
(a)(2)....................................................... 6.04
(b).......................................................... 11.03
318(a).......................................................... 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
