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Sample Business ContractsHome: Sample Business Contracts:
TALK AMERICA HOLDINGS, INC.
TO
WILMINGTON TRUST COMPANY
Trustee
__________
INDENTURE
Dated as of April 2, 2002
Providing for the Issuance of Subordinated Debt Securities in Series
<PAGE>
TALK AMERICA HOLDINGS, 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
(S) 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608, 610
(S) 311(a) 613
(b) 613
(S) 312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
(S) 313(a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
(S) 314(a) 704
(a)(4) 101, 704
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
(S) 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
(S) 316(a) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
(S) 317(a)(1) 503
(a)(2) 504
(b) 1505
(S) 318(a) 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
----
ARTICLE ONE Definitions and Other Provisions of General Application 1
Section 101. Definitions. 1
Section 102. Compliance Certificates and Opinions. 8
Section 103. Form of Documents Delivered to Trustee. 9
Section 104. Acts of Holders; Record Dates. 9
Section 105. Notices, Etc., to Trustee and Company. 11
Section 106. Notice to Holders; Waiver. 11
Section 107. Conflict with Trust Indenture Act. 11
Section 108. Effect of Headings and Table of Contents. 12
Section 109. Successors and Assigns. 12
Section 110. Separability Clause. 12
Section 111. Benefits of Indenture. 12
Section 112. Governing Law. 12
Section 113. Legal Holidays. 12
ARTICLE TWO Security Forms 12
Section 201. Forms Generally. 12
Section 202. Additional Provisions Required in Book-Entry Security. 13
Section 203. Form of Trustee's Certificate of Authentication. 14
ARTICLE THREE The Securities 14
Section 301. Amount Unlimited; Issuable in Series. 14
Section 302. Denominations. 17
Section 303. Execution, Authentication, Delivery and Dating. 17
Section 304. Temporary Securities. 19
Section 305. Registration, Registration of Transfer and Exchange. 19
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. 21
Section 307. Payment of Interest; Interest Rights Preserved. 22
Section 308. Persons Deemed Owners. 23
Section 309. Cancellation. 24
Section 310. Cancellation and/or Adjustment of Book-Entry Securities. 24
Section 311. Computation of Interest. 24
Section 312. CUSIP Numbers. 24
ARTICLE FOUR Satisfaction and Discharge 25
Section 401. Satisfaction and Discharge of Indenture. 25
Section 402. Application of Trust Money. 26
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ARTICLE FIVE Remedies 26
Section 501. Events of Default. 26
Section 502. Acceleration of Maturity; Rescission and Annulment. 28
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. 29
Section 504. Trustee May File Proofs of Claim. 29
Section 505. Trustee May Enforce Claims Without Possession of
Securities. 30
Section 506. Application of Money Collected. 30
Section 507. Limitation on Suits. 30
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. 31
Section 509. Restoration of Rights and Remedies. 31
Section 510. Rights and Remedies Cumulative. 31
Section 511. Delay or Omission Not Waiver. 31
Section 512. Control by Holders. 32
Section 513. Waiver of Past Defaults. 32
Section 514. Undertaking for Costs. 32
ARTICLE SIX The Trustee 33
Section 601. Certain Duties and Responsibilities. 33
Section 602. Notice of Defaults. 33
Section 603. Certain Rights of Trustee. 33
Section 604. Not Responsible for Recitals or Issuance of Securities. 34
Section 605. May Hold Securities and Serve as Trustee
Under Other Indentures. 35
Section 606. Money Held in Trust. 35
Section 607. Compensation and Reimbursement. 35
Section 608. Disqualification; Conflicting Interests. 36
Section 609. Corporate Trustee Required; Eligibility. 37
Section 610. Resignation and Removal; Appointment of Successor. 37
Section 611. Acceptance of Appointment by Successor. 39
Section 612. Merger, Conversion, Consolidation or Succession to
Business. 40
Section 613. Preferential Collection of Claims Against Company. 40
Section 614. Investment of Certain Payments Held by the Trustee. 40
Section 615. Appointment of Authenticating Agent. 41
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company 43
Section 701. Company to Furnish Trustee Names and Addresses of
Holders. 43
Section 702. Preservation of Information; Communications to Holders. 43
Section 703. Reports by Trustee. 44
Section 704. Reports by Company. 44
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ARTICLE EIGHT Successors 44
Section 801. Merger, Consolidation or Sale of Assets. 44
Section 802. Successor Substituted. 45
ARTICLE NINE Supplemental Indentures 45
Section 901. Supplemental Indentures Without Consent of Holders. 45
Section 902. Supplemental Indentures with Consent of Holders. 47
Section 903. Execution of Supplemental Indentures. 48
Section 904. Effect of Supplemental Indentures. 48
Section 905. Conformity with Trust Indenture Act. 48
Section 906. Reference in Securities to Supplemental Indentures. 48
ARTICLE TEN Covenants 48
Section 1001. Payment of Securities. 48
Section 1002. Maintenance of Office or Agency. 49
Section 1003. Money for Securities Payments to Be Held in Trust. 49
Section 1004. Commission Reports. 51
Section 1005. Compliance Certificate. 51
Section 1006. Stay, Extension and Usury Law. 52
Section 1007. Corporate Existence. 52
Section 1008. Taxes. 52
Section 1009. Investment Company Act. 52
ARTICLE ELEVEN Redemption of Securities 52
Section 1101. Applicability of Article. 52
Section 1102. Election to Redeem: Notice to Trustee. 53
Section 1103. Selection by Trustee of Securities to Be Redeemed. 53
Section 1104. Notice of Redemption. 53
Section 1105. Deposit of Redemption Price. 54
Section 1106. Securities Payable on Redemption Date. 54
Section 1107. Securities Redeemed in Part. 55
ARTICLE TWELVE Sinking Funds 55
Section 1201. Applicability of Article. 55
Section 1202. Satisfaction of Sinking Fund Payments with Securities. 55
Section 1203. Redemption of Securities for Sinking Fund. 56
ARTICLE THIRTEEN Subordination of Securities 56
Section 1301. Agreement to Subordinate. 56
Section 1302. No Payment on Securities if Senior Debt in Default. 56
Section 1303. Distribution on Acceleration of Securities; Dissolution
and Reorganization; Subrogation of Securities. 57
Section 1304. Reliance by Senior Debt on Subordination Provisions. 60
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<PAGE>
Section 1305. No Waiver of Subordination Provisions. 61
Section 1306. Trustee's Relation to Senior Debt. 61
Section 1307. Other Provisions Subject Hereto. 62
Section 1308. Limitation on Issuance of Other Subordinated Debt. 62
ARTICLE FOURTEEN Conversion of Securities 62
Section 1401. Applicability of Article. 62
Section 1402. Conversion Privilege and Conversion Price. 62
Section 1403. Conversion Procedure. 63
Section 1404. Fractional Shares. 64
Section 1405. Taxes on Conversion. 64
Section 1406. Company to Provide Stock. 64
Section 1407. Adjustment of Conversion Price. 65
Section 1408. No Adjustment. 68
Section 1409. Other Adjustments. 69
Section 1410. Adjustments for Tax Purposes. 69
Section 1411. Adjustments by the Company. 69
Section 1412. Notice of Adjustment. 69
Section 1413. Notice of Certain Transactions. 70
Section 1414. Effect of Reclassifications, Consolidations, Mergers
or Sales on Conversion Privilege. 70
Section 1415. Trustee's Disclaimer. 71
ARTICLE FIFTEEN Defeasance and Covenant Defeasance 71
Section 1501. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. 71
Section 1502. Defeasance and Discharge. 72
Section 1503. Covenant Defeasance. 72
Section 1504. Conditions to Defeasance or Covenant Defeasance. 73
Section 1505. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions. 74
Section 1506. Reinstatement. 75
Section 1507. Qualifying Trustee. 75
ARTICLE SIXTEEN Immunity of Incorporators, Stockholders, Officers,
Directors and Employees 76
Section 1601. Exemption from Individual Liability. 76
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
v
<PAGE>
INDENTURE, dated as of April 2, 2002, between Talk America Holdings, Inc.,
a Delaware corporation (the "Company"), and Wilmington Trust Company (hereafter,
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
subordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as provided
in this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
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,
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 at the
date of such computation in the United States of America; and
(4) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
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"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.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Book-Entry Securities, the rules and
procedures of the Depositary that apply to any such transfer or exchange.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 615 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in Section
202 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
such nominee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of equity interests in any entity,
including, without limitation, corporate stock and partnership interests.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Stock" means the common stock of the Company as the same exists at
the date of the execution of this Indenture or as such stock may be constituted
from time to 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 its Chairman of the Board, its Chief
Executive Officer, its
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President, its Chief Financial Officer, a Vice Chairman of the Board, a Vice
Chairman or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to act as
Conversion Agent.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of original execution of this Indenture
is located at Rodney Square North, 1100 North Market Street, Wilmington, DE
19890, except that, with respect to presentation of the Securities for payment
or registration of transfers or exchanges and the location of the register, such
term means the office or agency of the Trustee at which at any particular time
its corporate agency business shall be conducted.
"Custodian" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Book-Entry Securities, the
Person designated as Custodian for such series by the Company pursuant to
Section 301 or Section 305; if at any time there is more than one such Person,
"Custodian" as used with respect to the Securities of any series shall mean the
Custodian with respect to the Securities of such series.
"Daily Market Price" means the price of a share of Common Stock on the
relevant date, determined (a) on the basis of the last reported sale price
regular way of the Common Stock as reported on the Nasdaq Stock Market's
National Market (the "NNM"), or if the Common Stock is not then listed on the
NNM, as reported on such national securities exchange upon which the Common
Stock is listed, or (b) if there is no such reported sale on the day in
question, on the basis of the average of the closing bid and asked quotations
regular way as so reported, or (c) if the Common Stock is not listed on the NNM
or on any national securities exchange, on the basis of the average of the high
bid and low asked quotations regular way on the day in question in the
over-the-counter market as reported by the National Association of Securities
Dealers Automated Quotation System, or if not so quoted, as reported by National
Quotation Bureau, Incorporated, or a similar organization.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Book-Entry Securities,
the Person designated as Depositary for such series by the Company pursuant to
Section 301 or Section 305, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Designated Senior Debt" means (i) any Senior Debt which, as of the date of
this Indenture, has an aggregate principal amount outstanding of at least $15
million, and (ii) any Senior Debt which, at the date of determination, has an
aggregate principal amount outstanding of, or commitments to lend up to, a least
$15 million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Debt as "Designated Senior
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Debt" for purposes of this Indenture (provided, that such instrument may place
limitations and conditions on the right of such Senior Debt to exercise the
rights of Designated Senior Debt).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means, with respect to any person, all obligations, whether
or not contingent, of such person (i)(a) for borrowed money (including, but not
limited to, any indebtedness secured by a security interest, mortgage or other
lien on the assets of such person which is (1) given to secure all or part of
the purchase price of property subject thereto, whether given to the vendor of
such property or to another, or (2) existing on property at the time of
acquisition thereof), (b) evidenced by a note, debenture, bond or written
instrument, (c) under a lease required to be capitalized on the balance sheet of
the lessee under GAAP or under any lease or related document (including a
purchase agreement) which provides that such person is contractually obligated
to purchase or to cause a third party to purchase such leased property, (d) in
respect of letters of credit, bank guarantees or bankers' acceptances (including
reimbursement obligations with respect to any of the foregoing), (e) with
respect to Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge
or adverse claim affecting title or resulting in an encumbrance to which the
property or assets of such person are subject, whether or not the obligation
secured thereby shall have been assumed or Guaranteed by or shall otherwise be
such person's legal liability, (f) in respect of the balance of the deferred and
unpaid purchase price of any property or assets, and (g) under interest rate or
currency swap agreements, cap, floor and collar agreements, spot and forward
contracts and similar agreements and arrangements; (ii) with respect to any
obligation of others of the type described in the preceding clause (i) or under
clause (iii) below assumed by or guaranteed in any manner by such person or in
effect guaranteed by such person through an agreement to purchase (including,
without limitation, "take or pay" and similar arrangements), contingent or
otherwise (and the obligations of such person under any such assumptions,
guarantees or other such arrangements); and (iii) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"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. The term
"Indenture" shall also include the forms and terms of particular series of
Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
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"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuance Date" means the date on which the Securities are first
authenticated and issued.
"Material Subsidiary" means any Subsidiary of the Company which, at the
date of determination, is a "significant subsidiary" as defined in Rule 1-02(w)
of Regulation S-X under the Securities Act and the Exchange Act (as such
Regulation is in effect on the date hereof).
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial Officer,
a Vice Chairman of the Board, a Vice Chairman or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company (each, an "Officer"), and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"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 the Holders of
such Securities; provided, that if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to Section 1104 of this Indenture
or provision therefor satisfactory to the Trustee has been made;
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(iii) Securities, except to the extent provided in Sections 1502 and 1503,
with respect to which the Company has effected defeasance or covenant defeasance
as provided in Article Fifteen; and
(iv) 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;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) except for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, 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, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of 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 of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Sections 301.
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"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.
"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.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned by the Trustee to administer corporate trust matters and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" means the principal of, interest on and other amounts due on
Indebtedness of the Company, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or Guaranteed by the Company; unless, in
the instrument creating or evidencing or pursuant to which Indebtedness is
outstanding, it is expressly provided that such Indebtedness is not senior in
right of payment to the Securities. Senior Debt includes, with respect to the
obligations described above, interest accruing, pursuant to the terms of such
Senior Debt, on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not post-filing interest is
allowed in such proceeding, at the rate specified in the instrument governing
the relevant obligation. Notwithstanding anything to the contrary in the
foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts owed by
the Company for compensation to employees, or for goods, services or materials
purchased in the ordinary course of business; (b) Indebtedness of the Company to
a Subsidiary of the Company; (c) any liability for Federal, state, local or
other taxes owed or owing by the Company; or (d) Indebtedness of or amounts owed
by the Company under the Company's 4 1/2% Convertible Subordinated Notes due
2002 and the Company's 5% Convertible Subordinated Notes due 2004.
"Senior Subordinated Debt" means the Securities and any other Indebtedness
of the Company that specifically provides that it is to rank pari passu with
other Senior Subordinated Debt of the Company and is not subordinated to any
Indebtedness of the Company that is not Senior Debt.
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"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Company pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this instrument was executed,
except as provided in Section 905 hereof; provided, however, that in the event
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.
"U.S. Government Obligations" has the meaning specified in Section 1504.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
---------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer 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.
8
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Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture 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) statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
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 representations by
legal counsel or an opinion of legal counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate,
representations or opinion with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or
representations of legal counsel or opinion of legal 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 legal counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
---------------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise
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expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the 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
601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. 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.
(c) The Company may fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized
or permitted to be given or taken by Holders of Securities of such
series. If not set by the Company prior to the first solicitation of a
Holder of Securities of such series made by any Person in respect of
any such action, or, in the case of any such vote, prior to such vote,
the record date for any such action or vote shall be the 30th day (or,
if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for action to
be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
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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, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: Treasurer.
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, 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.
Any notice or communication shall also be so mailed to any Person described
in TIA 313(c), to the extent required by the TIA.
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 to be excluded, as the case may be.
11
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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.
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 the 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 LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or 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 (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
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, the Redemption Date, or at the Stated Maturity or
Maturity; provided, that no interest shall accrue for the intervening period.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
----------------
The Securities of each series shall be in substantially the form set forth
in Exhibit A hereto, which is hereby incorporated in and expressly made a part
of this Indenture, or in such
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other form as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company) or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the
Securities. The Company shall furnish any such legend not contained in Exhibit A
to the Trustee in writing at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities. The terms and provisions of the Securities set forth in Exhibit A
are part of the terms of this Indenture and to the extent applicable, the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. To the
extent any provision of any Securities conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be
controlling. If the form of Securities of any series is established by, or by
action taken pursuant to, a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
Section 202. Additional Provisions Required in Book-Entry Security.
----------------------------------------------------------
Each Book-Entry Security issued hereunder shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that
it shall represent the aggregate principal amount of outstanding Securities from
time to time endorsed thereon and that the aggregate principal amount of
outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Book-Entry Security to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Securities represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 305 hereof.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Exhibit A and in addition to any legend required by the
Depositary, bear a legend in substantially the following form:
"Unless this certificate is presented by an authorized representative of
the Depository Trust Company, a New York Corporation ("DTC"), New York, New
York, to the Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co., or to such other entity as is 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.
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Transfers of this global security shall be limited to transfers in whole,
but not in part, to nominees of DTC or to a successor thereof or such
successor's nominee and transfers of portions of this global security shall be
limited to transfers made in accordance with the restrictions set forth in the
indenture referred to on the reverse hereof."
Section 203. Form of Trustee's Certificate of Authentication.
----------------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
WILMINGTON TRUST
COMPANY ,
As Trustee
By
--------------------
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
----------------------------------------
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited (except as may be limited by
applicable law).
The Securities may be issued from time to time in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities
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<PAGE>
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities that, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than 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;
(4) the date or dates on which the principal of and premium, if any, on the
Securities of the series is payable or the method of determination thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of interest,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the Trustee, the place or
places where the principal of and any premium and interest on Securities of the
series shall be payable;
(7) the period or periods within which, the price or prices at which, the
currency or currencies (including currency units) in which and the other terms
and conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Securities
of the series pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods (or the methods of
determination of such a period or periods) within which, the price or prices at
which and the other terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of the
principal of and any premium and interest on any Securities of the series shall
be payable if other than the currency of the United States of America and the
manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
101;
(11) if the amount of payments of principal of or any premium or interest
on any Securities of the series may be determined with reference to an index,
formula or other method, the index, formula or other method by which such
amounts shall be determined;
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<PAGE>
(12) if the amount Outstanding of an Indexed Security for purposes of the
definition of "Outstanding" is to be other than the principal face amount at
original issuance, the method of determination of such amount;
(13) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or a Holder thereof,
in one or more currencies or currency units other than that or those in which
the Securities are stated to be payable, the currency, currencies or currency
units in which payment of the principal of and any premium and interest on
Securities of such series as to which such election is made shall be payable,
and the periods within which and the other terms and conditions upon which such
election is to be made;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(15) if either or both of Section 1502 or 1503 does not apply to the
Securities of any series;
(16) whether the Securities of the series shall be issued in whole or in
part in the form of one or more Book-Entry Securities and, in such case, the
Depositary and Custodian with respect to such Book-Entry Security or Securities
if other than as set forth in Section 305, and the circumstances under which any
Book-Entry Security may be registered for transfer or exchange, or authenticated
and delivered, in the name of a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(17) the rights, if any, to defer payments of interest on any Securities of
the series by extending the interest payment period, and the duration of such
extensions;
(18) any additional, modified or different covenants or Events of Default
applicable to one or more particular series of Securities;
(19) the application, if any, of Article Fourteen to the Securities of any
Series;
(20) the Person appointed as the Paying Agent, if other than as set forth
in Section 1002; and
(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
16
<PAGE>
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
--------------------------------------------------
The Securities shall be executed on behalf of the Company by two Officers,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that in the case of Securities of a
series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of electronic instructions from the
Company or its duly authorized agents, promptly confirmed in writing) acceptable
to the Trustee as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of Securities of
such series. If the form or forms or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 201, that
such form or forms have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series that are not to be originally issued at
one time, will be established
17
<PAGE>
by or pursuant to Board Resolution as permitted by Section 301,
that such terms have been, or in the case of Securities of a
series that are not to be originally issued at one time, will be
established in conformity with the provisions of this Indenture,
subject, in the case of Securities of a series that are not to be
originally issued at one time, to any conditions specified in
such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company, will constitute valid and
legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; provided, that such
Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in currency
other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate instructions satisfactory to the Trustee to cover such future
issuances, are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Book-Entry Securities, then the Company shall execute and the Trustee, upon
receipt of a Company Order, shall, in accordance with this Section and the
Company Order with respect to such series, authenticate and deliver or make
available for delivery one or more Securities in such form that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of the Outstanding Securities of such series to be represented by such
Book-Entry Security or Securities, (ii) shall be registered in the name of the
Depositary for such Book-Entry Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear the legend set
forth in Section 204.
Unless otherwise established pursuant to Section 301, the Company initially
appoints The Depositary Trust Company ("DTC") to act as Depositary and the
Trustee to act as Custodian. Each Depositary designated pursuant to Section 301
for a Book-Entry Security must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency
18
<PAGE>
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered. Each Depositary shall enter into an agreement
with the Trustee governing the respective duties and rights of such Depositary
and the Trustee with regard to Book-Entry Securities.
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 officer thereof,
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 of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver
or make available for delivery, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee,
upon receipt of a Company Order, shall authenticate and deliver or make
available for delivery in exchange therefor one or more definitive Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
--------------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register")
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<PAGE>
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities and shall otherwise comply with TIA 312(a). The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Notwithstanding anything herein to the contrary, there shall be only one
Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall, upon receipt of a Company
Order, authenticate and deliver or make available for delivery, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order, authenticate and deliver or make available for
delivery, the Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) 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.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the
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Depositary for such Security or its nominee only if (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Book-Entry Security or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as amended and the
Company does not appoint a successor Depositary within 90 days after receipt by
it of such notice or after it becomes aware of such cessation, (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable or (iii) there shall not have occurred and be
continuing an Event of Default with respect to the Securities. Any Book-Entry
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as such Depositary shall
direct.
In connection with all transfers and exchanges of beneficial interests in
Book-Entry Securities, the transferor of such beneficial interest must deliver
to the Registrar a written order from a Holder 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 Book-Entry Security in an
amount equal to the beneficial interest to be transferred or exchanged and
instructions given in accordance with the Applicable Procedures containing
information regarding the Holder account to be credited with such increase. Upon
satisfaction of all of the requirements for transfer or exchange of beneficial
interests in Book-Entry Securities contained in this Indenture and the
Securities or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Book-Entry Security pursuant to
Section 310 hereof.
Notwithstanding any other provision in this Indenture, unless and until it
is exchanged in whole or in part for Securities that are not in the form of a
Book-Entry Security, a Book-Entry Security may not be transferred or exchanged
except as a whole by the Depositary with respect to such Book-Entry Security to
a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Book-Entry Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
-----------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee, upon receipt of a Company Order, shall authenticate and
deliver or make available for delivery in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee, upon receipt of a Company
Order, shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new
21
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Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
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 of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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.
---------------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to (or, in the case of additional Securities issued pursuant to any payment in
kind provision, issued in the name of) the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency maintained
for such purpose pursuant to Section 301; provided, however, that at the option
of the Company, interest on Securities of any series that bear cash interest may
be paid (i) by check mailed to the address of the Person entitled thereto as it
shall appear on the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register;
provided, that such Person shall have given the Paying Agent written wire
instructions at least five Business Days prior to the applicable Interest
Payment Date.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (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 of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of
22
<PAGE>
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money or, in the case of any
Securities designated by their terms as Pay-in-Kind, additional Securities,
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 or additional Securities,
as applicable, 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
Company 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 Company shall promptly
notify the Trustee of such Special Record Date and, in the name and at the
expense of the Company, the Trustee shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 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
23
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principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by the Trustee and such
cancellation shall be noted conspicuously on each such Security. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities 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 Securities held by the Trustee shall be disposed of as directed by a
Company Order or after 90 days, if not in receipt of such Company Order, shall
be disposed of in accordance with the Trustee's customary procedures.
Section 310. Cancellation and/or Adjustment of Book-Entry Securities.
------------------------------------------------------------
At such time as a particular Book-Entry Security has been redeemed,
repurchased or canceled in whole and not in part, each such Book-Entry 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 Book-Entry Security is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Book-Entry Security, the principal amount of Securities represented by such
Book-Entry Security shall be reduced accordingly and an endorsement shall be
made on such Book-Entry Security by the Trustee or by 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 Book-Entry
Security, such other Book-Entry Security shall be increased accordingly and an
endorsement shall be made on such Book-Entry Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
Section 311. Computation of Interest.
-------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 312. CUSIP Numbers.
--------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a
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<PAGE>
convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness of such 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 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 FOUR
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 of any series (except as to any surviving rights of
registration of transfer, exchange or replacement of such 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, including, but not limited to,
Article Thirteen hereof, 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, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency unit or units
in which such Securities are payable 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 or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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<PAGE>
(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, the
obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 615 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402, Article Six and the last paragraph
of Section 1003 shall survive.
Section 402. Application of Trust Money.
-----------------------------
Subject to 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 FIVE
Remedies
Section 501. Events of Default.
-------------------
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (unless it is inapplicable to a
particular series or is specifically deleted or modified in the Board Resolution
(or action taken pursuant thereto), or supplemental indenture under which such
series of Securities is issued or has been modified in an indenture supplemental
hereto):
(1) default in the payment of any interest upon any Security of that series
when it becomes due and payable (whether or not prohibited by the subordination
provisions of this Indenture), 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 of that series at its Maturity (whether or not prohibited by the
subordination provisions of this Indenture); or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series and continuance of such default for a
period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture with respect to Securities of that series (other
than a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
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<PAGE>
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii) consents to
the entry of an order for relief against it in an involuntary case in which it
is the debtor, (iii) consents to the appointment of a Custodian of it or for all
or substantially all of its property, (iv) makes a general assignment for the
benefit of its creditors, or (v) makes the admission in writing that it
generally is unable to pay its debts as the same become due; or
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that: (i) is for relief against the Company or any Material
Subsidiary of the Company in an involuntary case, (ii) appoints a Custodian of
the Company or any Material Subsidiary of the Company or for all or
substantially all of its property, and the order or decree remains unstayed and
in effect for 60 days or (iii) orders the liquidation of the Company or any
Material Subsidiary of the Company, and the order or decree remains unstayed and
in effect for 60 days; or
(7) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any Material Subsidiary of the Company (or the
payment of which is guaranteed by the Company or any Material Subsidiary of the
Company), whether such Indebtedness or guarantee now exists or is created after
the Issuance Date, which default (i) is caused by a failure to pay when due
principal of or interest on such Indebtedness within the grace period provided
for in such Indebtedness (which failure continues beyond any applicable grace
period)(a "Payment Default") or (ii) results in the acceleration of such
Indebtedness prior to its express maturity (without such acceleration being
rescinded or annulled) and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any such Indebtedness under
which there is a Payment Default or the maturity of which has been so
accelerated, aggregates $10 million or more; or
(8) a final, non-appealable judgment or final non-appealable judgments
(other than any judgment as to which a reputable insurance company has accepted
full liability) for the payment of money are entered by a court or courts of
competent jurisdiction against the Company or any Material Subsidiary of the
Company and remain undischarged for a period (during which execution shall not
be effectively stayed) of 60 days, provided that the aggregate of all such
judgments exceeds $5 million; or
(9) any other Event of Default provided with respect to Securities of that
series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
-------------------------------------------------------
If an Event of Default (other than an Event of Default described in clause
5 or 6 of Section 501) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or, in the
case of Original Issue Discount Securities or Indexed Securities, such specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and 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, if any, and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series that 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.
If an Event of Default described in clause 5 or 6 of Section 501 occurs,
the Outstanding Securities shall ipso facto become immediately due and payable
without need of any declaration or other act on the part of the Trustee or any
Holder.
28
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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 the
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 an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
-------------------------------------
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its 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 the 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 directly to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due 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.
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 the Holders, vote for the election of a
trustee in bankruptcy or similar official and may be a member of a creditors' or
other similar committee.
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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
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
---------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or 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 (including its agents
and counsel) under Section 607;
SECOND: To the holders of Senior Debt to the extent required by Article
Thirteen;
THIRD: 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
FOURTH: The balance, if any, to the Company or to such other party as a
final order of a court of competent jurisdiction shall direct.
Section 507. Limitation on Suits.
---------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
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(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee before or during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all 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 Section 307) any
interest on such Security on the Stated Maturity or Maturities 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 and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
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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 and as otherwise provided in Section 507, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
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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
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constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
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The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for an |
