EXHIBIT 4.1
Conformed Copy
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▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
ISSUER
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE
DATED AS OF AUGUST 27, 2002
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$750,000,000 6.50% SENIOR NOTES DUE 2012
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▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture Act Section Indenture Section
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Section 310 (a)(1) ........................................... 609
(a)(2) ........................................... 609
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(b) .............................................. 608; 610
Section 311 (a) .............................................. 613
(b) .............................................. 613
Section 312 (a) .............................................. 701; 702
(b) .............................................. 702
(c) .............................................. 702
Section 313 (a) .............................................. 703
(b) .............................................. 703
(c) .............................................. 703
(d) .............................................. 703
Section 314 (a) .............................................. 704
(a)(4) ........................................... 1004
(b) .............................................. Not Applicable
(c)(1) ........................................... 102
(c)(2) ........................................... 102
(c)(3) ........................................... Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 102
Section 315 (a) .............................................. 601, 603
(b) .............................................. 602
(c) .............................................. 601
(d) .............................................. 601
(e) .............................................. 514
Section 316 (a) .............................................. 101
(a)(1)(A) ........................................ 502; 512
(a)(1)(B) ........................................ 513
(a)(2) ........................................... Not Applicable
(b) .............................................. 508
(c) .............................................. 104
Section 317 (a)(1) ........................................... 503
(a)(2) ........................................... 504
(b) .............................................. 1003
Section 318 (a) .............................................. 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the
Indenture.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions .............................................................................. 1
Section 102. Compliance Certificates and Opinions ..................................................... 11
Section 103. Form of Documents Delivered to Trustee ................................................... 12
Section 104. Acts of Holders; Record Dates ............................................................ 12
Section 105. Notices, Etc., to Trustee and Company .................................................... 13
Section 106. Notice to Holders; Waiver ................................................................ 14
Section 107. Conflict with Trust
Indenture Act ........................................................ 14
Section 108. Effect of Headings and Table of Contents ................................................. 14
Section 109. Successors and Assigns ................................................................... 14
Section 110. Separability Clause ...................................................................... 14
Section 111. Benefits of
Indenture .................................................................... 15
Section 112. Governing Law ............................................................................ 15
Section 113. Legal Holidays ........................................................................... 15
Section 114. Language of Notices, Etc. ................................................................ 15
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally .......................................................................... 15
Section 202. Forms of Face of Securities .............................................................. 16
Section 203. Forms of Reverse of Securities ........................................................... 18
Section 204. Form of Trustee's Certificate and Authorization .......................................... 22
ARTICLE III
THE SECURITIES
Section 301. Title and Terms .......................................................................... 22
Section 302. Denominations ............................................................................ 22
Section 303. Execution, Authentication, Delivery and Dating ........................................... 23
Section 304. Temporary Securities ..................................................................... 23
Section 305. Transfer and Exchange .................................................................... 24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities ......................................... 37
Section 307. Payment of Interest; Interest Rights Preserved ........................................... 37
Section 308. Persons Deemed Owners .................................................................... 39
Section 309. Cancellation ............................................................................. 39
Section 310. Computation of Interest .................................................................. 39
Section 311. CUSIP Numbers ............................................................................ 39
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of
Indenture .................................................. 40
Section 402. Application of Trust Money ............................................................... 41
ARTICLE V
REMEDIES
Section 501. Events of Default ........................................................................ 41
Section 502. Acceleration of Maturity; Rescission and Annulment ....................................... 42
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee .......................... 43
Section 504. Trustee May File Proofs of Claim ......................................................... 43
Section 505. Trustee May Enforce Claims Without Possession of Securities .............................. 44
Section 506. Application of Money Collected ........................................................... 44
Section 507. Limitation on Suits ...................................................................... 44
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest ................ 45
Section 509. Restoration of Rights and Remedies ....................................................... 45
Section 510. Rights and Remedies Cumulative ........................................................... 45
Section 511. Delay or Omission Not Waiver ............................................................. 46
Section 512. Control by Holders ....................................................................... 46
Section 513. Waiver of Past Defaults .................................................................. 46
Section 514. Undertaking for Costs .................................................................... 46
Section 515. Waiver of Usury, Stay or Extension Laws .................................................. 47
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities ...................................................... 47
Section 602. Notice of Defaults ....................................................................... 48
Section 603. Certain Rights of Trustee ................................................................ 48
Section 604. Not Responsible for Recitals or Issuance of Securities ................................... 50
Section 605. May Hold Securities ...................................................................... 50
Section 606. Money Held in Trust ...................................................................... 50
Section 607. Compensation and Reimbursement ........................................................... 50
Section 608. Disqualification; Conflicting Interests .................................................. 51
Section 609. Corporate Trustee Required; Eligibility .................................................. 51
Section 610. Resignation and Removal; Appointment of Successor ........................................ 51
Section 611. Acceptance of Appointment by Successor ................................................... 52
Section 612. Merger, Conversion, Consolidation or Succession to Business .............................. 53
Section 613. Preferential Collection of Claims Against Company ........................................ 53
Section 614. Appointment of Authenticating Agent ...................................................... 53
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders ................................ 55
Section 702. Preservation of Information; Communications to Holders ................................... 55
Section 703. Reports by Trustee ....................................................................... 55
Section 704. Reports by Company ....................................................................... 56
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms ..................................... 56
Section 802. Successor Substituted .................................................................... 57
ARTICLE IX
SUPPLEMENTAL
INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders ....................................... 57
Section 902. Supplemental Indentures with Consent of Holders .......................................... 58
Section 903. Execution of Supplemental Indentures ..................................................... 59
Section 904. Effect of Supplemental Indentures ........................................................ 59
Section 905. Conformity with Trust Indenture Act ...................................................... 59
Section 906. Reference in Securities to Supplemental Indentures ....................................... 59
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest ............................................... 59
Section 1002. Maintenance of Office or Agency .......................................................... 60
Section 1003. Money for Securities Payments to Be Held in Trust ........................................ 60
Section 1004. Statement by Officers as to Default ...................................................... 61
Section 1005. [Reserved] ............................................................................... 61
Section 1006. Limitations on Liens ..................................................................... 61
Section 1007. [Reserved] ............................................................................... 63
Section 1008. Waiver of Certain Covenants .............................................................. 63
Section 1009. Officers' Certificate as to Liquidated Damages ........................................... 63
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Optional Redemption ...................................................................... 63
Section 1102. Election to Redeem; Notice to Trustee .................................................... 64
Section 1103. Selection by Trustee of Securities to be Redeemed ........................................ 64
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Section 1104. Notice of Redemption ................................................................... 64
Section 1105. Deposit of Redemption Price ............................................................ 65
Section 1106. Securities Payable on Redemption Date .................................................. 65
Section 1107. Securities Redeemed in Part ............................................................ 65
ARTICLE XII
NON-RECOURSE
Section 1201. Non-Recourse to the Company's Affiliates; No Personal Liability of
Officers, Directors, Employees or Partners ........................................... 66
ARTICLE XIII
DEFEASANCE OF SECURITIES
Section 1301. Legal Defeasance ....................................................................... 66
Section 1302. Covenant Defeasance .................................................................... 68
Section 1303. Application by Trustee of Funds Deposited for Payment of Securities .................... 69
Section 1304. Repayment to Company ................................................................... 69
Section 1305. Reinstatement .......................................................................... 69
Annex A FORM OF CERTIFICATE OF TRANSFER .................................................................. A-1
Annex B FORM OF CERTIFICATE OF EXCHANGE .................................................................. B-1
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INDENTURE dated as of August 27, 2002 between ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a
Kansas corporation (the "Company"), having its principal office at One ▇▇▇▇▇
Center, Suite 1000, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and the WACHOVIA
BANK, NATIONAL ASSOCIATION, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of the Securities (as
hereinafter defined), substantially of the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with the terms of the Securities
and this Indenture, respectively, have been done.
Upon the issuance of the Exchange Securities or the effectiveness of a
registration statement filed in connection with the Exchange Offer, this
Indenture will be subject to the provisions of the Trust Indenture Act (as
hereinafter defined) that are required to be a part of this Indenture and shall,
to the extent applicable, be governed by such provisions. Prior thereto, the
provisions of said Trust Indenture Act will apply to this Indenture only to the
extent expressly provided herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. 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, 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 generally accepted accounting principles in
the United States, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the date
of such computation;
(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; and
(5) the words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture, and the word "Annex" refers to an Annex to this
Indenture.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means 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 specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, co-registrar or co-paying
agent.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, or Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate the
Securities.
"Authorized Newspaper" means a newspaper, in the English language,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the Borough of
Manhattan, The City of
New York.
"Bankruptcy Law" means Title 11, U.S. Code, as amended, or any similar
federal or state law for the relief of debtors or the protection of creditors.
"Board of Directors" means the board of directors of the Company, or
the executive or any other committee of that board duly authorized to act in
respect thereof.
"Board Resolution" means a copy of a resolution certified by the
Corporate Secretary of the Company, the principal financial officer of the
Company or any other authorized officer of the Company or a Person duly
authorized by any of them, 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.
2
"Business Day", means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of
New York
are authorized or obligated by law, executive order or regulation to close.
"Clearstream" means Clearstream Banking (or any successor securities
clearing agency).
"Closing Date" has the meaning specified in the Registration Rights
Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act 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 Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board, the Vice
Chairman, the President or a Vice President of the Company, and by the Treasurer
or Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which at the date hereof is ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"corporation" includes corporations, associations, limited liability
companies, joint-stock companies and business trusts.
"covenant defeasance" has the meaning specified in Section 1302.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1301.
"Definitive Security" means a Security other than a Global Security or
a temporary Security.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities, until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter shall mean or include each Person which is then a
Depositary hereunder, and if at any time there is more than one such Person,
shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States as at
the time of payment is legal tender for the payment of public and private debts.
3
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Exchange Offer" has the meaning specified in the Registration Rights
Agreement.
"Exchange Security" means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise registered under the Securities Act (which shall be substantially
identical to the Original Securities except that the Exchange Securities will
have been registered pursuant to an effective registration statement under the
Securities Act, will not be subject to transfer restrictions or registration
rights and will not be entitled to the benefit of provisions for Liquidated
Damages) and any Security with respect to which the next preceding Predecessor
Security of such Security was an Exchange Security.
"Global Securities" means the Restricted Global Securities and the
Unrestricted Global Securities.
"Global Security Legend" means a legend substantially in the form
specified in Section 305(g)(2).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Independent Investment Banker" has the meaning specified in
Section 1101.
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Security through a Participant.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of the
Securities Act.
"interest" includes Liquidated Damages, if any.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
4
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Securities for use by such Holders
in connection with the Exchange Offer.
"Liquidated Damages", which do not accrue on the Exchange Securities,
has the meaning specified in the Forms of Reverse of Security in Section 203.
Liquidated Damages, if any, accrued and unpaid on the Restricted Securities
shall be payable, as and to the extent provided in the Registration Rights
Agreement, in the manner provided for the payment of interest in the Indenture
and the Restricted Securities, on each applicable Interest Payment Date.
"Liquidated Damages Event", which does not apply to the Exchange
Securities, has the meaning specified in the Forms of Reverse of Security in
Section 203.
"Make-Whole Premium" with respect to any Security (or portion thereof)
to be redeemed will be equal to the excess, if any, of (i) the sum of the
present values, calculated as of the Redemption Date, of (a) each interest
payment that, but for such redemption, would have been payable on any such
Security (or portion thereof) being redeemed on each Interest Payment Date
occurring after the Redemption Date (excluding any accrued interest for the
period prior to the Redemption Date) and (b) the principal amount that, but for
such redemption, would have been payable at the Stated Maturity of the principal
of such Security (or portion thereof) being redeemed, over (ii) the principal
amount of such Security (or portion thereof) being redeemed. The present value
of interest and principal payments referred to in clause (i) will be determined
in accordance with generally accepted principles of financial analysis. Such
present values will be calculated by discounting the amount of each payment of
interest or principal from the date that each such payment would have been
payable, but for the redemption, to the Redemption Date at a discount rate equal
to the Treasury Yield plus 30 basis points (0.30%).
"Maturity," when used with respect to a Security, means the date on
which the principal of the Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Net Tangible Assets" means the total amount of assets appearing on a
consolidated balance sheet of the Company and its Subsidiaries less, without
duplication, the following: (i) all current liabilities (excluding any thereof
which are extendible or renewable by their terms or replaceable or refundable
pursuant to enforceable commitments at the option of the obligor thereon without
requiring the consent of the obligee to a time more than 12 months after the
time as of which the amount thereof is being computed and excluding current
maturities of long-term debt and preferred stock); (ii) all reserves for
depreciation and other asset valuation reserves but excluding any reserves for
deferred federal income taxes arising from accelerated depreciation or
otherwise; (iii) all goodwill, trademarks, trade names, patents, unamortized
debt discount and expense and other like intangible assets carried as an asset
on said balance sheet; and (iv) all appropriate adjustments on account of
minority interests of other Persons holding common stock in any Subsidiary.
"Notice of Default" means a written notice of the kind specified in
Section 501(3).
"Officers' Certificate" of a Person means a certificate signed by the
Chairman of the Board, the Vice Chairman, the President or a Vice President, and
by the Treasurer or the
5
Secretary, of the Person, or if such Person is a partnership, of its general
partner, and delivered to the Trustee. One of the officers or such other Persons
(as applicable) signing an Officers' Certificate given pursuant to Section 1004
or 1009 shall be the principal executive, financial or accounting officer of the
Person, or if such Person is a partnership, of its general partner.
"Opinion of Counsel" means a written opinion of legal counsel, who may
be an employee of or counsel for the Company, which opinion shall comply with
the provisions of Sections 102 and 103. Such counsel shall be acceptable to the
Trustee, whose acceptance shall not be unreasonably withheld.
"Original Securities" means all Securities other than Exchange
Securities.
"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 for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for Holders of such
Securities; provided, however, that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor has been made;
(iii) Securities which have been paid pursuant to Section 306 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, except to the extent provided in Sections 1301 and
1302, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article XIII;
provided, however, that in determining whether Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, 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.
"Participant" means, with respect to DTC, a Person who has an account
with DTC.
6
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities, means the
office or agency of the Company in The City of
New York.
"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 306 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 Property" means any natural gas pipeline, natural gas
distribution system, natural gas gathering system or natural gas storage
facility located in the United States, except any such property that in the
opinion of the Board of Directors is not of material importance to the business
conducted by the Company and its consolidated Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary which owns a Principal
Property.
"Purchase Agreement" means the Purchase Agreement, dated as of August
22, 2002, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇.▇. ▇▇▇▇▇▇
Securities Inc., Wachovia Securities, Inc., Commerzbank Capital Markets Corp.,
Scotia Capital (USA) Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., RBC Dominion Securities
Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and
Credit Lyonnais Securities (USA) Inc., as the same shall be amended from time to
time.
"Purchasers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇.▇. ▇▇▇▇▇▇ Securities
Inc., Wachovia Securities, Inc., Commerzbank Capital Markets Corp., Scotia
Capital (USA) Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., RBC Dominion Securities
Corporation, SunTrust Capital Markets, Inc., Banc One Capital Markets, Inc. and
Credit Lyonnais Securities (USA) Inc.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"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 at which it is to be redeemed pursuant to this
Indenture.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registrable Securities" has the meaning specified in the Registration
Rights Agreement.
7
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 27, 2002, between the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc., Wachovia Securities, Inc., Commerzbank
Capital Markets Corp., Scotia Capital (USA) Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., RBC
Dominion Securities Corporation, SunTrust Capital Markets, Inc., Banc One
Capital Markets, Inc. and Credit Lyonnais Securities (USA) Inc., as the same
shall be amended from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date means February 15th or August 15th of each year (whether or not a Business
Day) as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Global Securities" means any Regulation S Securities
issued in the form of one or more Global Securities registered in the name of
the Depositary, or its nominee, and deposited with the Trustee, as custodian for
the Depositary.
"Regulation S Permanent Global Security" means a permanent global
security in the form of the Security described in Sections 202 and 203 hereto
bearing the Global Security Legend and the Restricted Securities Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Regulation S Temporary Global Security upon expiration of the Restricted
Period.
"Regulation S Temporary Global Security" means a temporary global
security in the form of the Security described in Sections 202 and 203 hereto
bearing the Global Security Legend, Restricted Securities Legend and Regulation
S Temporary Global Security Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Securities
initially sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Security Legend" means a legend
substantially in the form of the legend specified in Section 305(g)(3).
"Regulation S Securities" means any Securities sold by the Purchasers
in reliance on Regulation S and any Successor Securities thereto as long as such
Securities are required pursuant to Section 305(g)(1) to bear the Restricted
Securities Legend.
"Restricted Definitive Security" means a Definitive Security bearing
the Restricted Securities Legend.
"Restricted Global Securities" has the meaning specified in
Section 201.
"Restricted Period" means the period of 41 consecutive days beginning
on and including the later of (i) the day on which Securities are first offered
to Persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the original issuance date of the Securities.
8
"Restricted Securities" means any Regulation S Securities and any
Securities sold by the Purchasers in reliance on Rule 144A and any Successor
Securities thereto as long as such Securities are required pursuant to Section
305(g)(1) to bear the Restricted Securities Legend.
"Restricted Securities Legend" means a legend substantially in the form
of the legend specified in Section 305(g)(1).
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144(k) Holding Period" has the meaning specified in the Forms of
Reverse of Security in Section 203.
"Securities" means the 6.50% Senior Notes due 2012 of the Company,
including the Original Securities and the Exchange Securities. For all purposes
of this Indenture, the term "Securities" shall include any Exchange Securities
issued in exchange for Original Securities pursuant to this Indenture and, for
purposes of this Indenture, all Outstanding Original Securities and Exchange
Securities shall vote together as one series of Securities under this Indenture.
"Securities Act" means the Securities Act of 1933 or any statute
successor thereto, in each case as amended from time to time.
"Security Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Security Register" means a register kept at an office or agency of the
Security Registrar in The City of
New York in which, subject to reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities.
"Security Registrar" means such Person that shall be appointed by the
Company to maintain the Security Register. The Company hereby appoints the
Trustee as the initial Security Registrar for purposes of registering Securities
and transfers of Securities as herein provided and its corporate trust office,
which, at the date hereof, is located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as the initial office or agency in The City of
New York
where the Security Register will be maintained. The Company may at any time
replace such Security Registrar, change such office or agency or act as its own
Security Registrar. The Company will give prompt written notice to the Trustee
of any change of the Security Registrar or of the location of such office or
agency. At all reasonable times the Security Register shall be available for
inspection by the Trustee.
"Shelf Registration Statement" has the meaning specified in the
Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
9
"Stated Maturity", when used with respect to the principal of any
Security or any installment of interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of the equity interests of such Person entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof or, in the case of a partnership, more than 50% of the
partners' equity interests (considering all partners' equity interests as a
single class), is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or a
combination thereof.
"Successor Security" of any particular Security means every Security
issued after, and 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 306 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.
"Treasury Yield" means a rate of interest per annum equal to the weekly
average yield to maturity of United States Treasury Notes that have a constant
maturity that corresponds to the remaining term to maturity of the Securities,
calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury
Yield will be determined as of the third Business Day immediately preceding the
applicable Redemption Date. The weekly average yields of United States Treasury
Notes will be determined by reference to the most recent statistical release
published by the Federal Reserve Bank of
New York and designated "H.15(519)
Selected Interest Rates" or any successor release (the "H.15 Statistical
Release"). If the H.15 Statistical Release sets forth a weekly average yield for
United States Treasury Notes having a constant maturity that is the same as the
Remaining Term, then the Treasury Yield will be equal to such weekly average
yield. In all other cases, the Treasury Yield will be calculated by
interpolation, on a straight-line basis, between the weekly average yields on
the United States Treasury Notes that have a constant maturity closest to and
greater than the Remaining Term and the United States Treasury Notes that have a
constant maturity closest to and less than the Remaining Term (in each case as
set forth in the H.15 Statistical Release). Any weekly average yields so
calculated by interpolation will be rounded to the nearest 0.01%, with any
figure of 0.0050% or above being rounded upward. If weekly average yields for
United States Treasury Notes are not available in the H.15 Statistical Release
or otherwise, then the Treasury Yield will be calculated by interpolation of
comparable rates selected by the Independent Investment Banker.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as otherwise
provided in Section 905; provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
10
"Unrestricted Definitive Securities" means Definitive Securities that
do not and are not required to bear the Restricted Securities Legend.
"Unrestricted Global Securities" means Global Securities which do not
and are not required to bear the Restricted Securities Legend.
"U.S." and "United States" each means the United States of America.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States for the 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, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, each of which are not callable or redeemable at the option of the
issuer thereof.
"U.S. Person" means a U.S. person as defined in Rule 902 under the
Securities Act.
"Vice President", when used with respect to the Company, means any vice
president of the Company, or when used with respect to the Trustee, means any
vice president of the Trustee.
Section 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
or refrain from taking any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have
been complied with. Each such certificate or opinion shall be given in the form
of an Officers' Certificate, if to be given by officers of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every Officers' Certificate or Opinion of Counsel (except for
certificates provided for in Sections 1004 and 1009) 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.
11
Section 103. 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, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows 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 104. Acts of Holders; Record Dates
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted 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 (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered (either physically or by means of a facsimile or an electronic
transmission, provided that such electronic transmission is transmitted through
the facilities of a Depositary) to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to
be made, given or taken by Holders, and a Depositary that is a Holder of a
Global Security may provide its proxy or proxies to the beneficial owners of
interests in any such Global Security.
12
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. Where such execution is by
a signer acting in a capacity other 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.
The ownership, principal amount and serial numbers of Securities held
by any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other action 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.
The Company may set any day as the record date for the purpose of
determining Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities (other than any such action provided or permitted to be taken
under Section 501, 502 or 512), but the Company shall have no obligation to do
so. Such record date shall be not earlier than the 30th day prior to the first
solicitation of any Holder to give or take any such action and not later than
the date of such first solicitation. With regard to any record date set pursuant
to this paragraph, Holders of Outstanding Securities on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to give
or take the relevant action, whether or not such Holders remain Holders after
such record date. The Company shall notify the Trustee in writing of any such
record date not later than the date of the first solicitation of any Holder to
give or take any action.
Section 105. Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver
or Act of 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 in writing and actually received
by the Trustee at its Corporate Trust Office, Attention: Corporate Trustee
Administration, or at any other address previously furnished in writing by 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 One ▇▇▇▇▇ Center, Suite 1000, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, to the attention of the Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the Company.
13
Section 106. 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 (if international mail, by
air mail), to each Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), 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. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
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 107. Conflict with Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
Section 108. 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 109. 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 110. Separability Clause
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
14
Section 111. 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 Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 112. Governing Law
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of
New York.
Section 113. 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 interest or principal (and premium, if any) 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 interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
Section 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language.
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally
The Securities and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, 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 applicable securities laws, tax laws or the rules
of any securities exchange or automated quotation system on which the Securities
may be listed or traded or of the Depositary therefor.
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.
Upon their original issuance, the Restricted Securities shall be issued
in the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for DTC,
for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may
15
direct), provided that upon such deposit all such Regulation S Global Securities
shall be credited to or through accounts maintained at DTC by or on behalf of
Euroclear or Clearstream. Such Global Securities, together with their Successor
Securities which are Global Securities, are collectively herein called the
"Restricted Global Securities".
Section 202. Forms of Face of Securities
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
6.50% SENIOR NOTE DUE 2012
No. U.S.$
----------- --------------
CUSIP No. ▇▇▇▇▇▇▇▇▇(1)
▇▇▇▇▇▇▇▇▇(2)
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Kansas corporation (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to __________________,
or registered assigns, the principal sum of ______________________ Dollars on
September 1, 2012, and to pay interest thereon from August 27, 2002 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 1 and September 1 in each year (or if any
such date is not a Business Day, the next succeeding Business Day), commencing
March 1, 2003, at the rate of 6.50% per annum, until the principal hereof is
paid or made available for payment.
The interest so payable [(and Liquidated Damages, if any, provided for
on the reverse hereof)],(3) and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in said Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be February 15 or August 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest [(and Liquidated Damages, if any)](3) not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest [(and Liquidated
Damages, if any)](3) to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest [(and
Liquidated Damages, if any)](3) on this Security will be made at the office or
agency of the Company maintained for that
----------
(1) For Securities sold in reliance on Rule 144A.
(2) For Securities sold in reliance on Regulation S.
(3) Omitted from Exchange Securities.
16
purpose in The City of
New York,
New York, in such coin or currency of the
United States as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the Company payment
of interest [(and Liquidated Damages, if any)](3) may be made by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register; and provided, further, however, that in case this Security is
held by a Depositary or its nominee, payments of principal, interest [(and
Liquidated Damages, if any)](3) and premium, if any, shall be made by wire
transfer of immediately available funds to an account designated by such
Depositary.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
17
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
------------------------
Name:
Title:
Section 203. Forms of Reverse of Securities
This Security is one of a duly authorized issue of securities of the
Company, limited in initial aggregate principal amount to $750,000,000, issued
and to be issued under an Indenture, dated as of August 27, 2002 (herein called
the "Indenture"), between the Company and Wachovia Bank, National Association,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which the Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities
issued and to be issued under the Indenture consist of $750,000,000 initial
aggregate original principal amount of 6.50% Senior Notes due 2012 and are
hereinafter called the "Securities"; provided, however, that the Company may, so
long as no Event of Default has occurred and is continuing, reopen the series of
Securities to issue additional Securities of such series, which shall form a
single series with the Securities and shall have the same terms, without the
consent of the Holders.
[The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement. The Company agrees to pay liquidated damages (the
"Liquidated Damages"), as specified below, upon the occurrence of any of the
following events (each such event a "Liquidated Damages Event"): (i) if the
Exchange Registration Statement or Shelf Registration Statement is not filed
within 120 days following the Closing Date, then commencing on the 121st day
after the Closing Date, Liquidated Damages shall accrue on the Securities over
and above the otherwise applicable interest rate at a rate of 0.25% per annum,
(ii) if the Exchange Registration Statement or the Shelf Registration Statement
is filed and is not declared effective within 210 days following the Closing
Date, then commencing on the 211th day after the Closing Date, Liquidated
Damages shall accrue on the Securities over and above the otherwise applicable
interest rate at a rate of 0.25% per annum, or (iii) if either (A) the Company
has not exchanged Exchange Securities for all Securities validly tendered in
accordance with the terms of the Exchange Offer on or prior to 45 Business Days
after the date on which the Exchange Registration Statement was declared
effective, or (B) the Shelf Registration Statement has been declared effective
but such Shelf Registration Statement ceases to be effective at any time (I)
prior to the second anniversary of the Closing Date or, if Rule 144(k) is
amended to provide a shorter restrictive period, such shorter period (the "Rule
144(k) Holding Period") and (II) while Registrable Securities are Outstanding,
then Liquidated Damages shall accrue on the Securities over and above the
otherwise applicable interest rate at a rate of 0.25% per annum commencing on
the (x) 46th Business Day after such effective date, in the case of (A) above,
or (y) the day the
18
Shelf Registration Statement ceases to be effective, in the case of (B) above;
provided, however, that the rate at which Liquidated Damages accrue on the
Securities shall never exceed 0.25% per annum; and provided, further, that
Liquidated Damages shall cease to accrue upon the earlier of (X) when all
Liquidated Damages Events have been cured or (Y) upon the expiration of the Rule
144(k) Holding Period. For purposes of clarifying the foregoing provisions (i)
the circumstances under which Liquidated Damages are owed are not cumulative,
(ii) in no event will the rate of Liquidated Damages exceed 0.25% per annum, and
(iii) Liquidated Damages shall not accrue at any time when there are no
Registrable Securities Outstanding.](3)
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Securities are redeemable, at the option of the Company, at any
time in whole or from time to time in part, upon not less than 30 and not more
than 60 days' notice mailed to each Holder of the Securities to be redeemed at
the Holder's address appearing in the Security Register, on any date prior to
Maturity at a price equal to (a) 100% of the principal amount thereof plus
accrued interest to the Redemption Date (subject to the right of holders of
record on the relevant Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date) and (b) a Make-Whole
Premium, if any (the "Redemption Price"). In no event will the Redemption Price
ever be less than 100% of the principal amount of the Securities being redeemed
plus accrued interest to the Redemption Date. The Make-Whole Premium will be
calculated by an independent investment banking institution of national standing
appointed by the Company; provided, that if the Company fails to make such
appointment at least 30 Business Days prior to the Redemption Date, or if the
institution so appointed is unwilling or unable to make such calculation, such
calculation will be made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. or, if such firm is
unwilling or unable to make such calculation, by an independent investment
banking institution of national standing appointed by the Trustee (in any such
case, an "Independent Investment Banker").
The Company has no obligation to redeem or purchase any Securities
pursuant to any sinking fund or analogous requirement, or (except as provided in
the Indenture) upon the happening of a specified event, or at the option of a
Holder thereof.
The Indenture contains provision for defeasance at any time of (1) the
entire indebtedness of this Security or (2) certain covenants contained therein,
in each case upon compliance with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of Holders of the Securities under the Indenture at any
time by the Company and the Trustee with the consent of a majority in aggregate
principal amount of the Securities at the time Outstanding. The Indenture also
contains provisions permitting Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of Holders
of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by
19
the Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default with respect to the Securities, Holders of not less than 25% in
principal amount of the Outstanding Securities shall have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from Holders of a majority in
principal amount of the Outstanding Securities a direction inconsistent with
such request and shall have failed to institute such proceedings within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of or any
interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall, without the consent of the Holder hereof, alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in The City of
New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, unless otherwise
required by law. As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
20
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers this
Security to
--------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type transferee's name, address, zip code and
social security or taxpayer identification number above)
and irrevocably appoints __________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for the agent.
Date:
---------------------
Your signature:
NOTICE: The signature(s) on this
assignment must correspond in every
particular with the name(s) of the
registered owner(s) appearing on the
face of the Security.
Signature
Signature Guaranteed by:
---------------------------------------------------------
NOTICE: Signature must be guaranteed by an "eligible
guarantor institution" meeting the requirements of the
Trustee, which requirements will include membership or
participation in STAMP or such other signature guaranty
program as may be determined by the Trustee in addition
to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY(4)
The initial principal amount of this Global Security is $____________.
The following increases or decreases in this Global Security as a result of
exchanges of a part of this Global Security for an interest in another Global
Security or Definitive Security, or exchanges of a part of another Global
Security or a Definitive Security for an interest in this Global Security have
been made:
Amount of
decrease in Principal Amount Amount of increase in Principal amount of this Signature of authorized
Date of of this Global Principal Amount of Global Security following signatory of Trustee or
Exchange Security this Global Security such decrease or increase Securities Custodian
-------- ---------------------------- --------------------- ------------------------- -----------------------
----------
(4) To be included only on Global Securities.
21
Section 204. Form of Trustee's Certificate and Authorization
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities designated therein referred to in the
within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Trustee
By:
--------------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 301. Title and Terms
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is initially limited to $750,000,000, except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Section 304, 305,
306 or 906; provided, however, that the Company may, so long as no Event of
Default has occurred and is continuing, reopen the series of Securities
represented by the 6.50% Senior Notes due 2012 to issue additional Securities of
such series, which shall form a single series with the Securities and shall have
the same terms, without the consent of the Holders.
The Securities shall be known and designated as the "6.50% Senior Notes
due 2012" of the Company. Their Stated Maturity in respect of principal shall be
September 1, 2012, and they shall bear interest at the rate of 6.50% per annum,
from August 27, 2002 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually on each March 1 and September 1, commencing March 1, 2003, until
the principal thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable at the
office or agency of the Company in The City of New York maintained for such
purpose and any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Section 302. Denominations
The Securities shall be issuable only in registered form without
coupons and only denominations of $1,000 and any integral multiple thereof,
unless otherwise required by law.
22
Section 303. Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by the
Chairman of the Board, Vice Chairman, Chief Executive Officer, Chief Financial
Officer, President or any Vice President of the Company and need not be
attested. The signature of any of these officers on the Securities may be manual
or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee or an Authenticating Agent 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; provided, however, that Exchange Securities shall be issuable only
upon the valid surrender for cancellation of Original Securities of a like
aggregate principal amount, in accordance with the Exchange Offer.
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 of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 for all purposes of this Indenture, such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities
Pending the preparation of Definitive Securities, the Company may
execute, and upon receipt of the documents required by Section 303, together
with a Company Order, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the Definitive Securities in lieu of which they are issued.
If temporary Securities are issued, the Company will cause Definitive
Securities to be prepared without unreasonable delay. After the preparation of
Definitive Securities, the temporary Securities shall be exchangeable for
Definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company maintained pursuant to Section 1002 for the purpose of
exchanges of Securities, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
Definitive Securities, of
23
any authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities shall in all respects be entitled to
the same benefits under this Indenture as Definitive Securities of such tenor.
Section 305. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary for the Global Securities or that it
is no longer a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Company within 90 days
after the date of such notice from the Depositary or (ii) the Company in its
sole discretion notifies the Trustee in writing that it elects to cause issuance
of the Securities in certificated form; provided, that in no event shall the
Regulation S Temporary Global Security be exchanged by the Company for
Definitive Securities prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Security Registrar of any certificates required pursuant
to Rule 903 under the Securities Act or an Opinion of Counsel to the effect that
such certificates are not required pursuant to Rule 903. Upon the occurrence of
either of the preceding events described in clause (i) or (ii) of the
immediately preceding sentence, Definitive Securities shall be issued in such
names as the Depositary shall instruct the Trustee. If an Event of Default
occurs and is continuing, the Company shall, at the request of the Holder
thereof, exchange all or part of a Global Security for one or more Definitive
Securities in denominations of $1,000 or integral multiples thereof. Global
Securities also may be exchanged or replaced, in whole or in part, as provided
in Section 306 hereof. Every Security authenticated and delivered in exchange
for, or in lieu of, a Global Security or any portion thereof, pursuant to this
Section 305(a) or Section 306 hereof, shall be authenticated and delivered in
the form of, and shall be, a Global Security. A Global Security may not be
exchanged for another Security other than as provided in this Section 305(a),
however, beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 305(b), (c) or (f) hereof. Notwithstanding
anything in this Section 305 to the contrary, neither the Trustee, the Security
Registrar nor the Company shall be required (i) to issue, register the transfer
of or exchange the Securities during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemptions of
Securities selected for redemption under Article XI and ending at the close of
business on the day of such mailing, or (2) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
(b) Transfer and Exchange of Beneficial Interests in the Global
Securities. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Securities shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Securities also shall
require compliance with all the following subparagraphs as are applicable:
24
(1) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may be
transferred to Persons who take delivery in the form of a beneficial interest in
the same Restricted Global Security in accordance with the transfer restrictions
set forth in the Restricted Securities Legend; provided, however, that prior to
the expiration of the Restricted Period transfers of beneficial interests in the
Regulation S Temporary Global Security may not be made to a U.S. Person or for
the account or benefit of a U.S. Person (other than a Purchaser). Beneficial
interests in any Unrestricted Global Security may be transferred only to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security. No written orders or instructions shall be
required to be delivered to the Security Registrar to effect the transfers
described in this Section 305(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests
in Global Securities. In connection with all transfers and exchanges of
beneficial interests in Global Securities not provided for in Section 305(b)(1),
the transferor of such beneficial interest must deliver to the Security
Registrar:
(i) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Security in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase; or
(ii) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary
to the Security Registrar containing information regarding the Person
in whose name such Definitive Security shall be registered to effect
the transfer or exchange referred to in clause (1) of this clause (B),
provided, that in no event shall Definitive Securities be issued upon
the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Security prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Security Registrar of any
certificates required pursuant to Rule 903 under the Securities Act or
an Opinion of Counsel to the effect that such certificates are not
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act. In
addition, beneficial interests in a Global Security may not be
exchanged for Definitive Securities except upon at least 20 days prior
written notice given to the Trustee and the Security Registrar by or on
behalf of the Depositary in accordance with Applicable Procedures. Upon
an Exchange Offer by the Company in accordance with Section 305(f)
hereof, the requirements of this Section 305(b)(2) shall be deemed to
have been satisfied with respect to the exchange of Securities in such
Exchange Offer upon receipt by the Security Registrar of the
instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global
Securities. Upon satisfaction of all of the requirements for transfer
or exchange of beneficial interests in Global Securities contained in
this Indenture, the Securities and otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Security(ies) pursuant to Section 305(h) hereof.
25
(3) Transfer of Beneficial Interests in a Restricted
Global Security. A beneficial interest in any Restricted Global
Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in the same or a different Restricted
Global Security if the transfer complies with the requirements of
clause (2) above, if applicable, and the transferor delivers to the
Security Registrar a certificate in the form of Annex A hereto.
(4) Transfer and Exchange of Beneficial Interests in
a Restricted Global Security for Beneficial Interests in an
Unrestricted Global Security. A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a beneficial
interest in an Unrestricted Global Security or transferred to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security if the exchange or transfer complies with
the requirements of clause (2) above and:
(i) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement;
(ii) any such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(iii) the Security Registrar receives the
following: (1) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Security, a certificate from such holder
in the form of Annex B hereto, including the certifications in
Item (1) thereof; (2) if the holder of such beneficial
interest in a Restricted Global Security proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such holder
in the form of Annex A hereto, including the certifications in
Item (4) thereof; and (3) in each such case set forth in this
subparagraph (iii), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the
Restricted Securities Legend are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to
subparagraph (ii) above or this subparagraph (iii) at a time
when an Unrestricted Global Security has not yet been issued,
the Company shall issue and, upon receipt of an authentication
order in accordance with Section 303 hereof, the Trustee shall
authenticate one or more Unrestricted Global Securities in an
aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraph (ii)
above or this subparagraph (iii). Beneficial interests in an
Unrestricted Global Security cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(1) If any holder of a beneficial interest in a
Restricted Global Security proposes to exchange such beneficial
interest for a Restricted Definitive Security or to transfer such
26
beneficial interest to a Person who takes delivery thereof in the form
of a Restricted Definitive Security, then, upon receipt by the Security
Registrar of the following documentation:
(i) if the holder of such beneficial
interest in a Restricted Global Security proposes to exchange
such beneficial interest for a Restricted Definitive Security,
a certificate from such holder in the form of Annex B hereto,
including the certifications in Item (5) thereof;
(ii) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Annex
A hereto, including the certifications in Item (1) thereof;
(iii) if such beneficial interest is being
transferred to a non-U.S. Person in an offshore transaction
pursuant to Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Annex A hereto,
including the certifications in Item (2) thereof;
(iv) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Annex A hereto, including the certifications in Item
(3)(a) thereof;
(v) if such beneficial interest is being
transferred pursuant to any other exemption (including a
beneficial interest being transferred to an Institutional
Accredited Investor) from the registration requirements of the
Securities Act, in either case other than those listed in
subparagraphs (ii), (iii) and (iv) above, then the transferor
must deliver a certificate in the form of Annex A hereto,
including the certifications, certificates and any Opinion of
Counsel required by Item (3)(d) thereof;
(vi) if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Annex A hereto,
including the certifications in Item (3)(b) thereof; or
(vii) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Annex A hereto, including the certifications in Item
(3)(c) thereof,
the Trustee, upon notice of receipt of such documentation by the
Security Registrar, shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant to
Section 305(h) hereof, and the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Person
designated in the instructions a Definitive Security in the appropriate
principal amount. Any Definitive Security issued in exchange for a
beneficial interest in a Restricted Global Security pursuant to this
Section 305(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Security Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall make available for delivery such
Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a
beneficial interest in a Restricted
27
Global Security pursuant to this Section 305(c)(1) shall bear the
Restricted Securities Legend and shall be subject to all restrictions
on transfer contained therein.
(2) Notwithstanding Sections 305(c)(1)(i) and (iii)
hereof, a beneficial interest in the Regulation S Temporary Global
Security may not be (A) exchanged for a Definitive Security prior to
(x) the expiration of the Restricted Period and (y) the receipt by the
Security Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act or (B) transferred to a
Person who takes delivery thereof in the form of a Definitive Security
prior to the conditions set forth in clause (A) above or unless the
transfer is pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904 thereunder.
(3) Notwithstanding Section 305(c)(1) hereof, a
holder of a beneficial interest in a Restricted Global Security may
exchange such beneficial interest for an Unrestricted Definitive
Security or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Security
only if:
(i) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement;
(ii) any such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(iii) the Security Registrar receives the
following:
(A) if the holder of such
beneficial interest in a Restricted Global Security
proposes to exchange such beneficial interest for an
Unrestricted Definitive Security, a certificate from
such holder in the form of Annex B hereto, including
the certifications in Item (2) thereof;
(B) if the holder of such
beneficial interest in a Restricted Global Security
proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of
an Unrestricted Definitive Security, a certificate
from such holder in the form of Annex A hereto,
including the certifications in Item (4) thereof; and
(C) in each such case set forth in
this subparagraph (iii), an Opinion of Counsel in
form reasonably acceptable to the Company, to the
effect that such exchange or transfer is in
compliance with the Securities Act, that the
restrictions on transfer contained herein and in the
Restricted Securities Legend are not required in
order to maintain compliance with the Securities Act,
and such beneficial interest in a Restricted Global
Security is being exchanged or transferred in
compliance with any applicable blue sky securities
laws of any State of the United States.
(4) If any holder of a beneficial interest in an
Unrestricted Global Security proposes to exchange such beneficial
interest for a Definitive Security or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Security, then, upon satisfaction of the conditions set
forth in Section 305(b)(2) hereof, the Trustee shall
28
cause the aggregate principal amount of the applicable Global Security
to be reduced accordingly pursuant to Section 305(h) hereof, and the
Company shall execute and the Trustee shall authenticate and make
available for delivery to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive
Security issued in exchange for a beneficial interest pursuant to this
Section 305(c)(4) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Security Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall make available for delivery such
Definitive Securities to the Persons in whose names such Securities are
so registered. Any Definitive Security issued in exchange for a
beneficial interest pursuant to this Section 305(c)(4) shall not bear
the Restricted Securities Legend. A beneficial interest in an
Unrestricted Global Security cannot be exchanged for a Restricted
Definitive Security or transferred to a Person who takes delivery
thereof in the form of a Restricted Definitive Security.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests.
(1) If any Holder of a Restricted Definitive Security
proposes to exchange such Security for a beneficial interest in a
Restricted Global Security or to transfer such Definitive Securities to
a Person who takes delivery thereof in the form of a beneficial
interest in a Restricted Global Security, then, upon receipt by the
Security Registrar of the following documentation:
(i) if the Holder of such Restricted
Definitive Security proposes to exchange such Security for a
beneficial interest in a Restricted Global Security, a
certificate from such Holder in the form of Annex B hereto,
including the certifications in Item (6) thereof;
(ii) if such Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Annex
A hereto, including the certifications in Item (1) thereof;
(iii) if such Definitive Security is being
transferred pursuant to Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in Annex
A hereto, including the certifications in Item (2) thereof;
(iv) if such Definitive Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Annex A hereto, including the certifications in Item
(3)(a) thereof;
(v) if such Definitive Security is being
transferred to an Institutional Accredited Investor or in
reliance on any other exemption from the registration
requirements of the Securities Act, in either case, other than
those listed in subparagraphs (ii), (iii) and (iv) above, a
certificate in the form of Annex A hereto, including
certifications, certificates, and any Opinion of Counsel
required by Item (3)(d) thereof;
29
(vi) if such Definitive Security is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Annex A hereto,
including the certifications in Item (3)(b) thereof; or
(vii) if such Definitive Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Annex A hereto, including the certifications in Item
(3)(c) thereof,
the Trustee, upon notice of receipt of such documentation by the
Security Registrar, shall cancel the Definitive Security, and increase
or cause to be increased the aggregate principal amount of the
appropriate Restricted Global Security.
(2) A Holder of a Restricted Definitive Security may
exchange such Security for a beneficial interest in an Unrestricted
Global Security or transfer such Restricted Definitive Security to a
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security only if:
(i) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement;
(ii) any such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(iii) the Security Registrar receives the
following:
(A) if the Holder of such
Restricted Definitive Security proposes to exchange
such Security for a beneficial interest in an
Unrestricted Global Security, a certificate from such
Holder in the form of Annex B hereto, including the
certifications in Item (3) thereof;
(B) if the Holder of such
Restricted Definitive Security proposes to transfer
such Security to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Security, a certificate from such
Holder in the form of Annex A hereto, including the
certifications in Item (4) thereof; and
(C) in each such case set forth in
this subparagraph (iii), an Opinion of Counsel in
form reasonably acceptable to the Company to the
effect that such exchange or transfer is in
compliance with the Securities Act, that the
restrictions on transfer contained herein and in the
Restricted Securities Legend are not required in
order to maintain compliance with the Securities Act,
and such Restricted Definitive Security is being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of
the United States.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 305(d)(2), the Trustee shall cancel the Restricted Definitive
Security and increase or cause to be increased the aggregate principal
amount of the appropriate Unrestricted Global Security.
30
(3) A Holder of an Unrestricted Definitive Security
may exchange such Security for a beneficial interest in an Unrestricted
Global Security or transfer such Unrestricted Definitive Security to a
Person who takes delivery thereof in the form of a beneficial interest
in an Unrestricted Global Security at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Security and increase or cause to be
increased the aggregate principal amount of the appropriate
Unrestricted Global Security.
(4) If any such exchange or transfer from a
Definitive Security to a beneficial interest is effected pursuant to
subparagraphs (2)(ii), (2)(iii) or (3) if this Section 305(d) at a time
when an Unrestricted Global Security has not yet been issued, the
Company shall issue and, upon receipt of an authentication order in
accordance with Section 303 hereof, the Trustee shall authenticate one
or more Unrestricted Global Securities in an aggregate principal amount
equal to the principal amount of beneficial interests transferred
pursuant to subparagraphs (2)(ii), (2)(iii) or (3) of this Section
305(d).
(e) Transfer and Exchange of Definitive Securities for Definitive
Securities. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 305(e), the Security Registrar
shall register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Security Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by his attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, pursuant to
the provisions of this Section 305(e).
(1) Restricted Definitive Securities may be
transferred to and registered in the name of Persons who take delivery
thereof if the Security Registrar receives the following:
(i) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Annex A hereto, including
the certifications in Item (1) thereof;
(ii) if the transfer will be made pursuant
to Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Annex A hereto,
including the certifications in Item (2) thereof;
(iii) if the transfer will be made pursuant
to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in Annex
A hereto, including the certifications in Item (3)(a) thereof;
(iv) if the transfer will be made to an
Institutional Accredited Investor or in reliance on any other
exemption from the registration requirements of the Securities
Act, in either case, other than those listed in subparagraphs
(1)(i), (1)(ii) and (1)(iii) of this Section 305(e), a
certificate in the form of Annex A hereto, including the
certifications, certificates and any Opinion of Counsel
required by Item (3)(d) thereof;
31
(v) if the transfer will be made to the
Company or any of its Subsidiaries, a certificate to the
effect set forth in Annex A hereto, including the
certifications in Item (3)(b) thereof; or
(vi) if the transfer will be made pursuant
to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Annex A hereto,
including the certifications in Item (3)(c) thereof.
(2) Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Definitive Security if:
(i) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement;
(ii) any such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement; or
(iii) the Security Registrar receives the
following:
(A) if the Holder of such
Restricted Definitive Security proposes to exchange
such Security for an Unrestricted Definitive
Security, a certificate from such Holder in the form
of Annex B hereto, including the certifications in
Item (4) thereof;
(B) if the Holder of such
Restricted Definitive Security proposes to transfer
such Security to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive
Security, a certificate from such Holder in the form
of Annex A hereto, including the certifications in
Item (4) thereof; and
(C) in each such case set forth in
this subparagraph (iii), an Opinion of Counsel in
form reasonably acceptable to the Company to the
effect that such exchange or transfer is in
compliance with the Securities Act, that the
restrictions on transfer contained herein and in the
Restricted Securities Legend are not required in
order to maintain compliance with the Securities Act,
and such Restricted Definitive Security is being
exchanged or transferred in compliance with any
applicable blue sky securities laws of any State of
the United States.
(3) A Holder of Unrestricted Definitive Securities
may transfer such Securities to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security. Upon receipt of a
request for such a transfer, the Security Registrar shall register the
Unrestricted Definitive Securities pursuant to the instructions from
the Holder thereof. Unrestricted Definitive Securities cannot be
exchanged for or transferred to Persons who take delivery thereof in
the form of a Restricted Definitive Security.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue, and,
upon receipt of (A) an authentication order in accordance with Section 303
hereof and (B) an Opinion of Counsel
32
opining as to the enforceability of the Exchange Securities, the Trustee shall
authenticate, (i) one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Securities tendered in compliance with the Registration
Rights Agreement and accepted for exchange in the Exchange Offer and (ii)
Unrestricted Definitive Securities in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Securities accepted for exchange
in the Exchange Offer. Concurrent with the issuance of such Securities, the
Trustee shall cause the aggregate principal amount of the applicable Restricted
Global Securities to be reduced accordingly, and the Company shall execute and
the Trustee shall authenticate and make available for delivery to the Persons
designated by the Holders of Definitive Securities so accepted Definitive
Securities in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Securities and Definitive Securities issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(1) Restricted Securities Legend.
(i) Except as permitted by subparagraph (ii) below,
each Global Security and each Definitive Security (and all Securities
issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. ACCORDINGLY, THIS SECURITY MAY NOT
BE OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF U.S. PERSONS, EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE
WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE
DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED UNDER THE
INDENTURE PURSUANT TO WHICH THIS SECURITY IS ISSUED)
AND IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER: (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), (B) IT IS ACQUIRING THIS SECURITY IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT (AN "IAI")), (2) AGREES THAT PRIOR
TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
▇▇▇▇▇▇ ▇▇▇▇▇▇,
33
INC. OR ANY AFFILIATE OF ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC. WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE"), IT WILL NOT RESELL, OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC. OR
ANY OF ITS AFFILIATES, (B) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT, TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
903 OR 904 UNDER THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION, AND ACCOMPANIED BY SUCH CERTIFICATIONS,
OPINIONS OF COUNSEL AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE, AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "U.S.
PERSONS" AND "UNITED STATES" HAVE THE MEANINGS
ASSIGNED TO THEM IN RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER
ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
(ii) Notwithstanding the foregoing, any Global
Security or Definitive Security issued pursuant to subparagraph (b)(4),
(c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 305 (and
all Securities issued in exchange therefor or substitution thereof)
shall not bear the Restricted Securities Legend.
(2) Global Security Legend. Each Global Security shall bear a
legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM,
34
THIS SECURITY MAY NOT BE EXCHANGED OR TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇) ("▇▇▇"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
(3) Regulation S Temporary Global Security Legend. The
Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY
GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES,
ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN).
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in a particular Global Security have been exchanged
for Definitive Securities or a particular Global Security has been redeemed,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 309 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security or for Definitive Securities, the principal amount of Securities
represented by such Global Security shall be reduced accordingly and an
endorsement shall be made on such Global Security, by the Trustee, the Security
Custodian or the Depositary at the direction of the Trustee, to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Security, such other Global Security shall be increased
accordingly and an endorsement shall be made on such Global Security, by the
Trustee, the Security Custodian or by the Depositary at the direction of the
Trustee, to reflect such increase.
35
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Security Registrar's
request.
(2) No service charge shall be made to a Holder of a
beneficial interest in a Global Security or to a Holder of a Definitive Security
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 304, 906 and 1107 hereof).
(3) The Security Registrar shall not be required to register
the transfer or exchange of any Security selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
(4) All Global Securities and Definitive Securities issued
upon any registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Securities or Definitive Securities surrendered upon such registration of
transfer or exchange.
(5) The Company shall not be required
(i) to issue, to register the transfer of or to
exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for
redemption under Section 1103 hereof and ending at the close of
business on the day of selection,
(ii) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or
(iii) to register the transfer of or to exchange a
Security between a record date and the next succeeding Interest Payment
Date.
(6) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section 303 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be submitted to the Security Registrar pursuant to this Section 305
to effect a transfer or exchange may be submitted by facsimile.
36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them and any agent of either of them harmless, the Company shall
execute and upon its request the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and bearing
a number not contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (1) evidence
to their satisfaction of the destruction, loss or theft of any Security and (2)
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 like tenor and principal amount and bearing a number
not contemporaneously Outstanding. If, after the delivery of such new Security,
a bona fide purchaser of the original Security in lieu of which such new
Security was issued presents for payment or registration such original Security,
the Trustee shall be entitled to recover such new Security from the party to
whom it was delivered or any party taking therefrom, except a bona fide
purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Company and the Trustee in connection therewith.
In case 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 issued pursuant to this Section in exchange for any mutilated
Security or in lieu of any destroyed, lost or stolen Security shall constitute
an original additional contractual obligation of the Company, whether or not the
mutilated, 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 duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. 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.
37
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the 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 (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 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 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 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 (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 in any other lawful manner not inconsistent with the requirements
of either securities exchange or automated quotation system on which such
Securities may be listed or traded, 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 and Section 305,
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.
The Company shall, prior to 10:30 a.m. (New York City time) on each
payment date for principal and premium, if any, and interest, if any, deposit
with the Trustee money in immediately available funds sufficient to make cash
payments due on the applicable payment date.
38
Section 308. 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 any premium
and (subject to Sections 305 and 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such Global Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. Cancellation
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Security previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Security previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly 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
Security held by the Trustee shall be disposed of in accordance with its
customary procedures, and the Trustee shall thereafter deliver to the Company a
certificate with respect to such disposition.
Section 310. Computation of Interest
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months and interest on the Securities for any partial
period shall be computed on the basis of a 360-day year of twelve 30-day months
and the number of days elapsed in any partial month.
Section 311. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (in
addition to the other identification numbers printed on the Securities), and, if
so, the Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such "CUSIP" numbers either
as printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such
39
redemption shall not be affected by any defect in or omission of such "CUSIP"
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities (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 proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities, when
(1) either
(A) all such Securities theretofore
authenticated and delivered (other than (i) such Securities
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, and (ii) such
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 1003) 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,
(ii) will become due and payable at their
Stated Maturity in respect of principal 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
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for this purpose an amount in
Dollars sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium
and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity of the principal thereof, or the 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 with respect to such Securities; and
40
(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 with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities (x) the obligations of the Company to the Trustee
under Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 614 and the right of the Trustee to resign under Section 610 shall
survive, and (y) if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Company
and/or the Trustee under Sections 402, 606, 701 and 1002 and the last paragraph
of Section 1003 shall survive.
Section 402. Application of Trust Money
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 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 any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
Section 501. Events of Default
"Event of Default", wherever used herein with respect to Securities,
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, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security at its Maturity; or
(3) default in the performance, or breach, of any term,
covenant or warranty of the Company in this Indenture, 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 Holders of at least 25% in principal amount of the
Outstanding Securities 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
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of any
order for relief against it in an
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involuntary case, (C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or (D) makes a general assignment for
the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 90 days.
Section 502. Acceleration of Maturity; Rescission and Annulment
If an Event of Default with respect to Securities at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
Holders of not less than 25% in principal amount of the Outstanding Securities
may declare the principal amount of and accrued but unpaid interest, if any, on
all of the Securities 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.
At any time after such a declaration of acceleration with respect to
the Securities 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, Holders of a majority in principal amount of the Outstanding
Securities, 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,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration of
acceleration and any 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
(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, other
than the non-payment of the principal of Securities which have become due solely
by such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium 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 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 occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of Holders of the Securities 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 504. Trustee May File Proofs of Claim
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, their property or their creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to 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 607.
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No provision of this Indenture 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; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. 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 Holders of the Securities in respect of which such judgment
has been recovered.
Section 506. Application of Money Collected
Any money or property collected or to be applied 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 or
property on account of principal or any premium 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 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium 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 any premium and interest, respectively; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits
No Holder of any Security 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;
(2) Holders of not less than 25% in principal amount of the
Outstanding Securities 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;
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(3) such Holder or Holders have offered and, if requested,
provided to the Trustee reasonable security or 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 and, if requested, provision of security or 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 Holders of a majority in
principal amount of the Outstanding Securities;
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.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Sections 305
and 307) interest on such Security on the Stated Maturity expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. 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 in every such case, subject to any
determination in such proceeding, the Company, the Trustee and Holders shall be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and Holders shall continue as
though no such proceeding had been instituted.
Section 510. 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 306, no right or remedy herein conferred upon or reserved to the Trustee
or to 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.
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Section 511. Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holders, as the case may be.
Section 512. Control by Holders
Subject to the provisions of Section 603, Holders of a majority in
aggregate principal amount of the Outstanding Securities 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; provided, however, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such directions if the Trustee in
good faith shall determine that the proceeding so directed would involve the
Trustee in personal liability or would otherwise be contrary to applicable law.
Section 513. Waiver of Past Defaults
Holders of a majority in aggregate principal amount of the Outstanding
Securities may on behalf of Holders of all the Securities waive any past default
hereunder and its consequences, except
(1) a continuing default in the payment of the principal of or
any premium or interest on any Security, or
(2) a default in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security 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.
Section 514. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess
46
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee,
in any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities to
which the suit relates, or in 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 expressed by such Security (or,
in the case of redemption or repayment, on or after the Redemption Date).
Section 515. Waiver of Usury, 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 usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities
(a) Except during the continuance of an Event of Default with respect
to the Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect to the
Securities, and no implied covenants or obligations shall read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to the Securities, 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 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.
(b) In case an Event of Default with respect to the Securities has
occurred and is continuing, the Trustee shall exercise with respect to the
Securities such rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
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(c) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities 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;
and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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 602. Notice of Defaults
If a default occurs and is continuing with respect to the Securities,
the Trustee shall, within 90 days after it occurs, transmit, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, notice of
all uncured or unwaived defaults known to it; provided, however, that, except in
the case of a default in payment on the Securities, the Trustee shall be
protected in withholding the 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 determine in good faith that withholding such notice is
in the interests of Holders of Securities; provided, further, however, that, in
the case of any default of the character specified in Section 501(3) with
respect to the Securities, no such notice to Holders shall be given until at
least 30 days after the occurrence of such default. 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 the
Securities.
Section 603. Certain Rights of Trustee
Subject to the provisions of Section 601:
(1) the Trustee may rely on and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
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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;
(2) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) 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 Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) 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;
(7) 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;
(8) the Trustee is not a party to the Registration Rights
Agreement and shall be entitled to rely on an Officers' Certificate as to
whether Liquidated Damages are owed on the Securities; and
(9) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any Person authorized to
sign an Officers' Certificate, including any Person specified as so authorized
in any such certificate previously delivered and not superseded.
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Section 604. Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. Neither the Trustee nor any Authenticating
Agent makes any representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of the Securities
or the proceeds thereof.
Section 605. May Hold Securities
The Trustee, any Authenticating Agent, 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
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. 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 except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) 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;
(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 of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder; and
(4) the Trustee shall have a claim prior to the Securities as
to all property and funds held by it hereunder for any amounts owing it or any
predecessor Trustee pursuant to this Section 607, except to funds held in trust
for the benefit of Holders of any Securities.
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The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(4) or Section 501(5), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 607 and the obligations of the Company
thereunder, shall survive payment in full of the Securities, the satisfaction
and discharge of this Indenture and any defeasance of the Securities.
Section 608. Disqualification; Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility
There shall at all times be a single Trustee hereunder that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus required by the Trust Indenture Act. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Person 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 610. Resignation and Removal; Appointment of Successor
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 611.
The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time by Act of Holders of a majority
in principal amount of the Outstanding Securities, delivered to the Trustee and
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609
and shall fail to resign after written request therefor by the Company, or by
any such Holder, or
(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 (A) the Company, by a Board
Resolution, may remove the Trustee, or (B) subject to Section 514, 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 and the appointment of a
successor Trustee.
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, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee and shall
comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of Holders of a majority
in principal amount of the Outstanding Securities 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 611, become the successor Trustee and shall supersede
the successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or Holders and accepted appointment in the
manner required by 611, 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 appointment of a
successor Trustee.
The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor
(1) Every such successor Trustee appointed hereunder 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.
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(2) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (1) of this Section.
(3) 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 612. 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 613. Preferential Collection of Claims Against Company
If and when the Trustee shall be or become a creditor of the Company or
any other obligor upon the Securities, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company or any such other obligor.
Section 614. Appointment of Authenticating Agent
The Trustee (upon notice to the Company) may appoint an Authenticating
Agent or Agents which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
53
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of such Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or such Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
Except with respect to an Authenticating Agent appointed at the request
of the Company, the Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within-mentioned
Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
As Trustee
Date:
----------------
By:
--------------------------------
As Authenticating Agent
By:
--------------------------------
Authorized Signatory
54
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee
(1) not later than each Interest Payment Date in each year in
respect of the Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of Holders of Securities as of the preceding
Regular Record Date in respect of the Securities, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders
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 701 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 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
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 accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 703. Reports by Trustee
As promptly as practicable after each May 15 beginning with the May 15
following the date of this Indenture, and in any event prior to July 15 in each
year, the Trustee shall mail to each Holder a brief report dated as of May 15
that complies with Trust Indenture Act Section 313(a). The Trustee also shall
comply with Trust Indenture Act Section 313(b). Prior to delivery to Holders,
the Trustee shall deliver to the Company a copy of any report it delivers to
Holders pursuant to this Section 703.
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.
55
Section 704. 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 Exchange Act; 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 (unless the Commission will not accept such a filing), 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 Exchange Act 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
(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 VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person 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, partnership or
trust, shall be organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto, or an amendment
to the Indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every other covenant in this Indenture on
the part of the Company to be performed or observed;
56
(2) immediately after giving effect to such
transaction and treating any indebtedness that becomes an obligation of
the Company or a Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse or time or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets of
the Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance that would not be permitted by this
Indenture, the Company or such successor Person, as the case may be,
shall take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) 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 such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 802. Successor Substituted
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person 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
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and may liquidate or dissolve.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders
Without the consent of any Holders of Securities, the Company 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 secure the Securities;
(2) to evidence the succession of another Person to the
Company under this Indenture and the Securities and the assumption by such
successor Person of the obligations of the Company hereunder;
(3) to add covenants and Events of Default for the benefit of
Holders of the Securities or to surrender any right or power conferred by this
Indenture upon the Company;
57
(4) to add to, change or eliminate 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 permit or facilitate the
issuance of Securities in uncertificated form;
(5) to cure any ambiguity or correct any inconsistency in this
Indenture;
(6) to amend this Indenture to reopen the series represented
by the Securities and issue additional Securities of that series in compliance
with Section 301;
(7) to evidence the acceptance of appointment by a successor
Trustee;
(8) to qualify this Indenture under the Trust Indenture Act;
(9) to supplement any provisions of this Indenture necessary
to permit or facilitate the defeasance and discharge of the Securities, provided
that such action does not adversely affect the interests of Holders of
Securities; and
(10) to comply with the rules or regulations of any securities
exchange or automated quotation system on which any of the Securities may be
listed or traded.
Section 902. Supplemental Indentures with Consent of Holders
With the consent of Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities affected by such supplemental
indenture, the Company and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture, or modifying
in any manner the rights of Holders of Securities under this Indenture; provided
that the Company and the Trustee may not, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or of any
installment of interest on, any Security, or reduce the principal amount thereof
or premium, if any, or the rate of interest thereon, or alter the method of
computation of interest;
(2) reduce the percentage in principal amount of the
Securities required for any such supplemental indenture or for any waiver
provided for in this Indenture;
(3) change the Company's obligation to maintain an office or
agency for payment of Securities and the other matters specified herein;
(4) impair the right to institute suit for the enforcement of
any payment of principal of, premium, if any, or interest on, any Security; or
(5) modify any of the provisions of this Indenture relating to
the execution of supplemental indentures with the consent of Holders of
Securities which are discussed in this Section or modify any provisions relating
to the waiver by Holders of Securities of past defaults and covenants, except to
increase any required percentage or to provide that other provisions of
58
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby.
It shall not be necessary for any Act of 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.
Section 903. 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 (subject to Section 601) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. 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 905. 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 906. Reference in Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
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.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest
The Company covenants and agrees for the benefit of Holders of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities in accordance with the terms of such Securities
and this Indenture.
59
Section 1002. Maintenance of Office or Agency
The Company will maintain in the Place of Payment an office or agency
where the Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. 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, and the Company hereby appoints the
Trustee 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 in the City of New York where the Securities 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 the Place of Payment 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.
The Company hereby permanently designates as the Place of Payment of
Securities The City of New York, and initially appoints the Trustee as Paying
Agent at its office located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, as the Company's office or agency for such purpose in such city.
Section 1003. Money for Securities Payments to Be Held in Trust
If the Company or any of its Subsidiaries shall at any time act as
Paying Agent with respect to the Securities, it will, on or before each due date
of the principal of or any premium or interest on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or prior to each due date of the principal of or any
premium or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause the Paying Agent for the Securities other than
the Trustee 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
Securities 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) in the making of any payment
60
of principal (and premium, if any) or interest, if any, on the Securities; and
(3) during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent in trust for
the payment of the principal of or any premium or interest on any Security and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the state whose escheat laws control,
and the Trustee or such Paying Agent shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the state whose escheat laws control, 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
payment, may at the expense of the Company cause to be published once, 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
paid to the state whose escheat laws control.
Section 1004. Statement by Officers as to Default
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. [Reserved]
Section 1006. Limitations on Liens
The Company will not, nor will it permit any Subsidiary to, issue,
assume or guarantee any debt for money borrowed (any such debt being referred to
in this Section as "Debt"), if such Debt is secured by a mortgage, pledge,
security interest or lien (any mortgage, pledge, security interest or lien being
referred to in this Section as a "mortgage" or "mortgages") upon any Principal
Property of the Company or any Principal Subsidiary or upon any shares of stock
or indebtedness of any Principal Subsidiary (whether such Principal Property,
shares or indebtedness is now owned or hereafter acquired), without in any such
case effectively providing, concurrently with the issuance, assumption or
guarantee of such Debt, that the
61
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Principal Subsidiary
ranking equally with the Securities then outstanding and existing or thereafter
created) shall be secured equally and ratably with (or prior to) such Debt;
provided, however, that the foregoing restrictions shall not apply to:
(1) mortgages on property acquired, constructed or improved by the
Company or any Principal Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with,
or within 180 days after, such acquisition (or in the case of
property constructed or improved, after the completion and
commencement of commercial operation of such property,
whichever is later) to secure or provide for the payment of
any part of the purchase price of such property or the cost of
such construction or improvement, it being understood that if
a commitment for such a financing is obtained prior to or
within such 180-day period, the applicable mortgage shall be
deemed to be included in this clause (1) whether or not such
mortgage is created within such 180-day period; provided that
in the case of any such construction or improvement the
mortgage shall not apply to any property theretofore owned by
the Company or any Subsidiary other than any theretofore
unimproved real property on which the property so constructed,
or the improvement, is located;
(2) mortgages on any property existing at the time of acquisition
thereof (including mortgages on any property acquired from a
Person which is consolidated with or merged with or into the
Company or a Subsidiary) and mortgages outstanding at the time
any corporation becomes a Subsidiary;
(3) mortgages in favor of the Company or any Principal Subsidiary;
(4) mortgages in favor of the United States, any State thereof,
any foreign country or any department, agency or
instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of constructing or
improving the property subject to such mortgages, including,
without limitation, mortgages to secure Debt of the pollution
control or industrial revenue bond type; and
(5) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of
any mortgage referred to in any of the foregoing clauses (1)
to (4), inclusive; provided, however, that the principal
amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property
that secured the mortgage so extended, renewed or replaced
(plus improvements on such property).
Notwithstanding the foregoing provisions of this Section, the Company
and any Subsidiary may issue, assume or guarantee secured Debt, which would
otherwise be subject to the foregoing restrictions, in an aggregate amount
which, together with all other such Debt, does
62
not exceed 10% of Net Tangible Assets, as shown on a consolidated balance sheet,
as of a date not more than 90 days prior to the proposed transaction, prepared
by the Company in accordance with generally accepted accounting principles.
Section 1007. [Reserved]
Section 1008. Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 1006 with respect to the
Securities if before the time for such compliance Holders of at least a majority
in aggregate principal amount of the Outstanding Securities 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 1009. Officers' Certificate as to Liquidated Damages
The Company shall deliver an Officers' Certificate to the Trustee
within five Business Days after a Liquidated Damages Event occurs which
identifies such Liquidated Damages Event and states the date as of which
Liquidated Damages began accruing or will begin to accrue. Promptly upon (i) a
Liquidated Damages Event having been cured or (ii) the expiration of the Rule
144(k) Holding Period, the Company shall deliver to the Trustee an Officers'
Certificate which identifies such Liquidated Damages Event, states that it has
been cured or that the Rule 144(k) Holding Period has expired, as the case may
be, and states the date as of which Liquidated Damages ceased accruing or will
cease to accrue.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Optional Redemption
The Securities will be redeemable, at the option of the Company, at any
time in whole or from time to time in part, upon not less than 30 and not more
than 60 days' notice mailed to each Holder of the Securities to be redeemed at
the Holder's address appearing in the Security Register, on any date prior to
Maturity at a price equal to (a) 100% of the principal amount thereof plus
accrued interest to the Redemption Date (subject to the right of holders of
record on the relevant Record Date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date) and (b) a Make-Whole
Premium, if any (the "Redemption Price"). In no event will the Redemption Price
ever be less than 100% of the principal amount of the Securities redeemed plus
accrued interest to the Redemption Date. The Make-Whole Premium will be
calculated by an independent investment banking institution of national standing
appointed by the Company; provided, that if the Company fails to make such
appointment at least 30 business days prior to the Redemption Date, or if the
institution so appointed is unwilling or unable to make such calculation, such
calculation will be made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or, if such
63
firm is unwilling or unable to make such calculation, by an independent
investment banking institution of national standing appointed by the Trustee (in
any such case, an "Independent Investment Banker").
The Company has no obligation to redeem or purchase any Securities
pursuant to any sinking fund or analogous requirement, or (except as provided in
Article V) upon the happening of a specified event, or at the option of a Holder
thereof.
Section 1102. 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, the Company shall, not less than 35 nor more
than 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 the Securities to be redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, on a pro rata basis or by any other method which the
Trustee deems fair and appropriate and which complies with any securities
exchange or other applicable requirements for redemption of portions (equal to
the minimum authorized denomination for Securities or any integral multiple
thereof) of the principal amount of Securities of a denomination larger than the
minimum authorized denomination for Securities.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any such 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 the Securities shall
relate, in the case of any such 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 1104. Notice of Redemption
Notice of redemption shall be given by first-class mail (if
international mail, by air mail), postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder of the Securities
to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption of any such
Securities, 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 that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105. Deposit of Redemption Price
On or prior to 10:30 a.m. New York City Time on 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 1003) 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.
Section 1106. Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein 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. 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 installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
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 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
such Security.
Section 1107. 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 any authorized denomination as
requested by
65
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
NON-RECOURSE
Section 1201. Non-Recourse to the Company's Affiliates; No Personal Liability of
Officers, Directors, Employees or Partners
Obligations of the Company under this Indenture and the Securities are
non-recourse to the Company's Affiliates and payable only out of cash flow and
assets of the Company. The Trustee, and each Holder of a Security by its
acceptance thereof, will be deemed to have agreed in this Indenture that (1)
none of the Company's Affiliates (or their respective assets) shall be liable
for any of the obligations of the Company under this Indenture or such
Securities, and (2) no director, officer, employee, stockholder, shareholder or
unitholder, as such, of the Company, the Trustee or any Affiliate of any of the
foregoing entities shall have any personal liability in respect of the
obligations of the Company under this Indenture or such Securities by reason of
his, her or its status. The agreements set forth in this Section 1201 are part
of the consideration for the issuance of the Securities.
ARTICLE XIII
DEFEASANCE OF SECURITIES
Section 1301. Legal Defeasance
In addition to discharge of the Indenture pursuant to Section 401, the
Company shall be deemed to have paid and discharged the entire indebtedness on
all Securities on the 91st day after the date of the deposit referred to in
Clause (1) below, and the provisions of this Indenture with respect to such
Securities shall no longer be in effect (except as to (i) rights of registration
of transfer and exchange of such Securities and the Company's right of optional
redemption, (ii) substitution of mutilated, destroyed, lost or stolen
Securities, (iii) rights of Holders of such Securities to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor or on the specified redemption dates therefor (but not upon
acceleration), (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, and the Company's obligations in connection therewith
(including, but not limited to, Section 607), (v) the rights, if any, to convert
or exchange such Securities, (vi) the rights of Holders of such Securities as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vii) the obligations of the Company under
Section 1002), and the Trustee, at the expense of the Company, shall, upon a
Company Request, execute proper instruments acknowledging the same, if the
conditions set forth below are satisfied (hereinafter, "defeasance"):
(1) The Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust, for the purposes of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of Holders of such Securities (A) cash in an amount, or (B) U.S.
Government Obligations, maturing as to principal and interest at
66
such times and in such amounts as will insure the availability of cash, or (C) a
combination thereof, certified to be sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal and
interest and premium, if any, on all such Securities on each date that such
principal, interest or premium, if any, is due and payable or on any Redemption
Date established pursuant to Clause (3) below;
(2) The Company has delivered to the Trustee an Opinion of
Counsel based on the fact that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B) since the date
hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and such opinion shall confirm that, Holders of
such Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(3) If such Securities are to be redeemed prior to Stated
Maturity, notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made;
(4) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(5) Such defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all
such Securities are in default within the meaning of such Act);
(6) Such defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which
the Company is a party or by which it is bound;
(7) Such defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this provision
have been complied with.
For this purpose, such defeasance means that the Company and any other
obligor upon the Securities shall be deemed to have paid and discharged the
entire debt represented by such Securities, which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 1303 and the rights and
obligations referred to in Clauses (i) through (vii), inclusive, of the first
paragraph of this Section, and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned.
67
Section 1302. Covenant Defeasance
The Company and any other obligor shall be released on the 91st day
after the date of the deposit referred to in Clause (1) below from its
obligations under Sections 704, 801 and 1006 with respect to the Securities on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and such Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization, direction,
notice, waiver, consent or declaration or other action or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed Outstanding for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501, but, except as specified
above, the remainder of this Indenture and the Securities shall be unaffected
thereby. The following shall be the conditions to application of this Section
1302:
(1) The Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of Holders of the Securities (A) cash in an amount, or (B) U.S.
Government Obligations, maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash, or (C) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal and interest and premium, if any,
on all Securities on each date that such principal, interest or premium, if any,
is due and payable or on any Redemption Date established pursuant to Clause (2)
below;
(2) If such Securities are to be redeemed prior to Stated
Maturity, notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made;
(3) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(4) The Company has delivered to the Trustee an Opinion of
Counsel which shall confirm that Holders of such Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same time as would have been the case
if such deposit and covenant defeasance had not occurred;
(5) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all such Securities are in default within the meaning of such Act);
68
(6) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound;
(7) Such covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(8) The Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel stating that all conditions precedent
provided for relating to the covenant defeasance contemplated by this provision
have been complied with.
Section 1303. Application by Trustee of Funds Deposited for Payment of
Securities
Subject to the provisions of the last paragraph of Section 1003, all
moneys or U.S. Government Obligations deposited with the Trustee pursuant to
Section 1301 or 1302 (and all funds earned on such moneys or U.S. Government
Obligations) shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to Holders of such Securities for the payment or redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law. Subject to
Sections 1301 and 1302, the Trustee shall promptly pay to the Company upon
Company Order any moneys held by it at any time, which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification delivered to the Trustee, are in excess of the amounts
required to effect the defeasance with respect to the Outstanding Securities in
question.
Section 1304. Repayment to Company
The Trustee and any Paying Agent promptly shall pay or return to the
Company upon Company Request any money and U.S. Government Obligations held by
them at any time that are not required for the payment of the principal of and
any interest on such Securities for which money or U.S. Government Obligations
have been deposited pursuant to Section 1301 or 1302, which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification delivered to the Trustee, are in excess of the amounts
required to effect the defeasance with respect to the Outstanding Securities in
question.
The provisions of the last paragraph of Section 1003 shall apply to any
money held by the Trustee or any Paying Agent under this Article that remains
unclaimed for two years after the Maturity of the Securities for which money or
U.S. Government Obligations have been deposited pursuant to Section 1301 or
1302.
Section 1305. Reinstatement
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise
69
prohibiting such application, the obligations of the Company under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Indenture until such time as the Trustee
or the Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article; provided, however, that if the
Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or the Paying Agent.
* * *
70
This instrument may be executed with counterpart signature pages or 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, General
Counsel and Secretary
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
71
ANNEX A
FORM OF CERTIFICATE OF TRANSFER
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
One ▇▇▇▇▇ Center, Suite 1000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
Wachovia Bank, National Association,
as Trustee and Security Registrar
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: 6.50% Senior Notes due 2012 of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
(the "Securities")
Reference is made to the Indenture, dated as of August 27, 2002 (the
"Indenture"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. (the "Company"), and Wachovia Bank,
National Association, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), are used herein as therein so defined.
The undersigned (the "Transferor") owns and proposes to transfer the
Security[ies] or beneficial interest in such Security[ies] specified in Annex A
hereto, in the principal amount of $__________ (the "Transfer"), to
_______________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies to the Company and
the Trustee that:
[CHECK ALL THAT APPLY]
(1) [ ] CHECK IF THE TRANSFER IS PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the beneficial interest or Security[ies] is being
transferred to a Person that the Transferor reasonably believed and
believes is purchasing the beneficial interest or Security[ies] for its
own account, or for one or more accounts with respect to which such
Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Security[ies] will be subject to the
restrictions on transfer enumerated in the Restricted Securities Legend
A-1
printed on the appropriate Global Security and/or Definitive Security
and in the Indenture and the Securities Act.
(2) [ ] Check if the TransferEE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A REGULATION S GLOBAL SECURITY OR A DEFINITIVE
SECURITY pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore
securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act, and (iv) the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than a
Purchaser). Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Security[ies] will be subject to the restrictions on transfer
enumerated in the Restricted Securities Legend printed on the
appropriate Global Security and/or the Definitive Security and in the
Indenture and the Securities Act.
(3) [ ] Check and complete if Transferee will take delivery of
a beneficial interest in a Restricted Global Security or of a
Restricted Definitive Security pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is
being effected in compliance with the transfer restrictions applicable
to beneficial interests in Restricted Global Securities and Restricted
Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state
of the United States, and accordingly the Transferor hereby further
certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the
Company or a subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to
an effective registration statement under the Securities Act
and in compliance with the prospectus delivery requirements of
the Securities Act;
A-2
or
(d) [ ] such Transfer is being effected pursuant to
an exemption under the Securities Act other than Rule 144A,
Rule 144, Rule 903 or Rule 904 to a Person who is an
Institutional Accredited Investor and the Transferor further
certifies that the transfer complies with the transfer
restrictions applicable to the Restricted Global Securities or
the Restricted Definitive Securities bearing the legend set
forth in Section 305(g)(1) of the Indenture and the
requirements of the exemption claimed, which certification is
supported by (i) if such Transfer is in respect of a principal
amount of Securities at the time of transfer of $250,000 or
more, a certificate executed by the Transferee containing
certain representations and agreements relating to the
Transfer (the form of which can be obtained from the Trustee),
or (ii) if such Transfer is in respect of a principal amount
of Securities at the time of Transfer of less than $250,000,
(A) the certificate referenced in clause (i) above and (B) an
Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to
this certification), to the effect that (1) such Transfer is
in compliance with the Securities Act and (2) such Transfer
complies with any applicable blue sky securities laws of any
state of the United States;
(4) [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED
DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144.
(i) The Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act and in
compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or
Security[ies] will no longer be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend
printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION
S. (i) The Transfer is being effected pursuant to and in
accordance with Rule 903 or Rule 904 under the Securities Act
and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of
any state of the United States, and (ii) the restrictions on
transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or
Security[ies] will no longer be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend
printed on the Restricted Global Securities, on Restricted
Definitive Securities and in the Indenture.
A-3
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER
EXEMPTION. (i) The Transfer is being effected pursuant to and
in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States,
and (ii) the restrictions on transfer contained in the
Indenture and the Restricted Securities Legend are not
required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial
interest or Security[ies] will not be subject to the
restrictions on transfer enumerated in the Restricted
Securities Legend printed on the Restricted Global Securities
or Restricted Definitive Securities and in the Indenture.
This certificate and the statements contained herein are made for the
benefit of the Company and the Trustee.
[Insert Name of Transferor]
By:
---------------------------
Name:
Title:
Dated:
----------------
A-4
ANNEX A TO CERTIFICATE OF TRANSFER
The Transferor owns and proposes to transfer the following: [CHECK ONE]
(a) a beneficial interest in:
[ ] a Regulation S Global Security; or
[ ] another Restricted Global Security; or
(b) [ ] a Restricted Definitive Security.
After the Transfer the Transferee will hold: [CHECK ONE]
(a) a beneficial interest in:
[ ] a Regulation S Global Security; or
[ ] another Restricted Global Security; or
[ ] Unrestricted Global Security; or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
A-5
ANNEX B
FORM OF CERTIFICATE OF EXCHANGE
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
One ▇▇▇▇▇ Center, Suite 1000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Secretary
Wachovia Bank, National Association,
as Trustee and Security Registrar
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: 6.50% Senior Notes due 2012 of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
(the "Securities")
Reference is made to the Indenture, dated as of August 27, 2002 (the
"Indenture"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. (the "Company"), and Wachovia Bank,
National Association, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended
(the "Securities Act"), are used herein as therein so defined.
The undersigned (the "Owner") owns and proposes to exchange the
Security[ies] or beneficial interest in such Security[ies] specified herein, in
the principal amount of $__________ (the "Exchange"). In connection with the
Exchange, the Owner hereby certifies to the Company and the Trustee that:
EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(1) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL SECURITY. In connection with the Exchange of the Owner's
beneficial interest in a Restricted Global Security for a beneficial
interest in an Unrestricted Global Security in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Securities and pursuant to and in accordance
with the United States Securities Act of 1933, as amended (the
"Securities Act"), (iii) the restrictions on transfer contained in the
Indenture and the Restricted Securities Legend are not required in
order to maintain compliance with the Securities Act, and (iv) the
beneficial interest in an Unrestricted
B-1
Global Security is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(2) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Security for an Unrestricted Definitive Security in
an equal principal amount, the Owner hereby certifies (i) the
Unrestricted Definitive Security is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted
Global Securities and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and
the Restricted Securities Legend are not required in order to maintain
compliance with the Securities Act, and (iv) the Unrestricted
Definitive Security is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(3) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Owner's Exchange of a Restricted Definitive
Security for a beneficial interest in an Unrestricted Global Security
in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the
Restricted Securities Legend are not required in order to maintain
compliance with the Securities Act, and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(4) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the
Owner's Exchange of a Restricted Definitive Security for an
Unrestricted Definitive Security in an equal principal amount, the
Owner hereby certifies (i) the Unrestricted Definitive Security is
being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Restricted Securities Legend are not
required in order to maintain compliance with the Securities Act, and
(iv) the Unrestricted Definitive Security is being acquired in
compliance with any applicable blue sky securities laws of any state of
the United States.
EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES
(5) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In
B-2
connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Security for a Restricted Definitive Security with an
equal principal amount, the Owner hereby certifies that the Restricted
Definitive Security is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive
Security issued will continue to be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend printed on the
Restricted Definitive Security and in the Indenture and the Securities
Act.
(6) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In
connection with the Exchange of the Owner's Restricted Definitive
Security for a beneficial interest in a Restricted Global Security with
an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account
without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Definitive
Securities and pursuant to and in accordance with the Securities Act,
and in compliance with any applicable blue sky securities laws of any
state of the United States. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in
the Restricted Securities Legend printed on the relevant Restricted
Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Company and the Trustee.
[Insert Name of Owner]
By:
---------------------------
Name:
Title:
Dated:
----------------------
B-3
