<PAGE>
As filed with the Securities and Exchange Commission on November 14, 1997
Registration No. 333-35003
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COMPLETE MANAGEMENT, INC.
Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<CAPTION>
New York 8742 11-3149119
<S> <C> <C>
(State or other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
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254 West 31st Street, New York, New York 10001
(212) 273-0600
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Executive Offices)
------------------
STEVEN M. RABINOVICI
Chairman and Chief Executive Officer
Complete Management, Inc.
254 West 31st Street
New York, New York 10001-2813
(212) 273-0600
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code
of Agent for Service)
------------------
with a copy to:
STEPHEN A. ZELNICK, Esq. JONATHAN JEWETT
Morse, Zelnick, Rose & Lander, LLP Shearman & Sterling
450 Park Avenue 599 Lexington Avenue
New York, New York 10022 New York, New York 10022
(212) 838-8040
(212) 838-9190 (fax)
<PAGE>
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offer to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of the securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION -- DATED NOVEMBER 14, 1997
PROSPECTUS
$200,000,000
COMPLETE MANAGEMENT, INC.
Securities
---------------------
Complete Management, Inc. (the "Company") intends to issue from time to
time in one or more series up to $200,000,000 aggregate offering price of its
(i) unsecured debt securities ("Debt Securities"), which may be either senior
debt securities ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities"), (ii) preferred shares, par value $.001 per
share ("Preferred Shares"), which may be issued in whole or in a fraction of a
Preferred Share in the form of depositary shares evidenced by depositary
receipts ("Depositary Shares") and (iii) common shares, par value $.001 per
share ("Common Shares") (the Debt Securities, Preferred Shares, Depositary
Shares and Common Shares are referred to collectively as the "Securities"). The
Securities offered hereby (the "Offered Securities") may be offered separately
or together, in separate series, in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (i) in the case of
Debt Securities, the specific designation (including whether senior or
subordinated), aggregate principal amount, denomination, maturity, premium, if
any, priority, interest rate (which may be variable or fixed), time of payment
of any premium and any interest, terms for optional redemption or repayment or
for sinking fund payments, and terms for conversion into or exchange for other
Offered Securities; (ii) in the case of Preferred Shares, the specific title
and stated value, number of shares or fractional interests therein, the
dividend, liquidation, redemption, conversion, voting and other rights, and
whether interests in the Preferred Shares will be represented by Depositary
Shares; and (iii) in the case of all Offered Securities, any initial offering
price, will be set forth in a Prospectus Supplement. The Prospectus Supplement
will also contain information, where applicable, about material United States
federal income tax considerations relating to, and any listing on a securities
exchange of, the Offered Securities offered thereby.
See "Risk Factors" on pages 3 to 10 for a discussion of certain material
factors that should be considered in connection with an investment in the
Offered Securities.
The Offered Securities may be offered directly through underwriters or
dealers or through such firms or other firms acting alone or through dealers.
The Offered Securities may also be sold directly by the Company or through
agents to investors. The names of any agents, dealers or managing underwriters,
and of any underwriters involved in the sale of the Offered Securities in
respect of which this Prospectus is being delivered, the applicable agents'
commission, dealers' purchase price or underwriters' discounts and commissions
and the net proceeds to the Company from such sale will be set forth in the
applicable Prospectus Supplement. See "Plan of Distribution".
---------------------
This Prospectus may not be used to consummate the sale of the Securities
unless accompanied by a Prospectus Supplement.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is November , 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549; and at its
regional offices at 7 World Trade Center, 13th Floor, New York, New York 10048
and at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511.
Copies of such material may be obtained from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549, at prescribed rates. The Commission maintains a site on the world-wide
web at http://www.sec.gov that contains reports, proxy and information
statements regarding the Company. Such reports, proxy and information
statements and other information can also be inspected at the office of the New
York Stock Exchange, 20 Broad Street, New York, New York 10005 on which
exchange the Company's Common Shares are traded.
The Company has filed with the Commission a Registration Statement on Form
S-3 (including all amendments and supplements thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Securities offered hereby. This Prospectus and any
accompanying Prospectus Supplement do not contain all of the information set
forth in the Registration Statement and the exhibits and schedules filed as a
part thereof, as permitted by the rules and regulations of the Commission. For
further information with respect to the Company and the Securities, reference
is hereby made to such Registration Statement, including the exhibits and
schedules filed as a part thereof. Statements contained in this Prospectus and
any Prospectus Supplement as to the contents of any contract or other document
referred to herein are not necessarily complete and where such contract or
other document is an exhibit to the Registration Statement, each such statement
is qualified in all respects by the provisions of such exhibit, to which
reference is hereby made for a full statement of the provisions thereof. The
Registration Statement, including the exhibits and schedules filed as a part
thereof, may be inspected without charge at the public reference facilities
maintained by the Commission as set forth in the preceding paragraph.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission (File No. 0-27260) are
incorporated in this Prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed pursuant to the Exchange Act (the "1996 Form
10-K");
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1997, June 30, 1997, as amended, and September 30, 1997,
filed pursuant to the Exchange Act;
(3) The Company's Current Report on Form 8-K, as amended, dated June 17,
1997, filed pursuant to the Exchange Act; and
(4) The Company's Proxy Statement for its 1997 Annual Meeting of
Shareholders, dated June 16, 1997, filed pursuant to the Exchange Act.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of any offering of the Securities made by this Prospectus shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any document incorporated by reference in this
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Prospectus (other than exhibits unless such exhibits are specifically
incorporated by reference in such documents). Requests should be directed to
Complete Management, Inc., 254 West 31st Street, New York, New York 10001-2813,
(212) 273-0600, Attention: Corporate Secretary.
THE COMPANY
The Company provides physician practice management services to medical
practices and hospitals located in the New York metropolitan area, particularly
New York City, Long Island, the Hudson Valley region and portions of New Jersey
and Connecticut. The Company's services range from managing all non-medical
aspects of its clients' businesses to providing limited non-medical services,
such as billing and collection, transcription and temporary staffing.
Additionally, the Company owns and provides administrative support for magnetic
resonance and other diagnostic imaging equipment at eight hospitals and certain
medical practices. The Company also owns Consumer Health Network, a preferred
provider organization ("PPO") operating in New Jersey and, to a more limited
extent, New York and Connecticut. Consumer Health Network is the largest PPO in
New Jersey.
At October 15, 1997, the Company's full service clients employed 175
physicians and other health care providers, its partial service clients
employed approximately 1,100 physicians and other health care providers and
Consumer Health Network had under contract approximately 11,700 physicians and
other health care providers and 117 hospitals. As a result, the Company
estimates that it provides services to approximately 19% of the physicians in
the New York metropolitan area. The Company does not, however, provide any type
of medical, diagnostic or treatment services; rather, these services are
provided by the Company's clients.
Unless the context otherwise requires, the term "Company" means Complete
Management, Inc. and its subsidiaries. The Company was incorporated in New York
in 1992 and its executive offices are located at 254 West 31st Street, New
York, New York 10001. The Company's telephone number is (212) 273-0600.
RISK FACTORS
An investment in the Offered Securities involves various material risks.
Prospective investors should carefully consider the following factors, in
addition to the other information set forth in this Prospectus, in connection
with an investment in the Offered Securities.
When used in this Prospectus, the words "may," "will," "expect,"
"anticipate," "continue," "estimate," "project," "intend" and similar
expressions are intended to identify forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act regarding events, conditions and financial trends that may affect the
Company's future plans of operations, business strategy, results of operations
and financial position. The Company wishes to ensure that such statements are
accompanied by meaningful cautionary statements pursuant to the safe harbor
established in the Private Securities Litigation Reform Act of 1995.
Prospective investors are cautioned that any forward-looking statements are not
guarantees of future performance and are subject to risks and uncertainties and
that actual results may differ materially from those included within the
forward-looking statements as a result of various factors. Factors that could
cause or contribute to such differences include, but are not limited to, those
identified in this section and elsewhere in this Prospectus.
In particular, in connection with certain past acquisitions and the entry
into long-term physician practice management agreements the Company has
disclosed expected additions to its revenues from such transactions. Such
revenue forecasts are forward-looking information and as such are inherently
subject to risk and uncertainty. Important factors, including the risk factors
set forth herein, could cause the Company's actual results from these
transactions to differ materially and adversely from the projections, or the
additional revenues from these transactions could be offset by a diminution of
other revenues. Accordingly, there can be no assurance that the Company will
achieve the projected revenues, or, if attained, what effect such revenues will
have on the Company's net earnings or earnings per share.
Substantial Indebtedness; Capital Needs. The Company is, and subsequent to
any offering of Debt Securities will continue to be, highly leveraged. At
September 30, 1997, the Company and its consolidated subsidiaries had total
debt (including a minority interest) of $90,577,000 of which $79,506,000 was
long-term debt and $11,071,000 was short-term debt. The Company is party to a
$10,000,000 line of credit arrangement with
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a bank, all of which was drawn at September 30, 1997. The Company also
satisfies its ongoing working capital and other cash needs from its cash, cash
equivalents and marketable securities, which totaled $72,605,000 at December
31, 1996 and $17,075,000 at September 30, 1997. The ability of the Company to
repay its indebtedness (including any Debt Securities that may be issued
hereunder) will depend upon its future operating performance, which is subject
to the success of the Company's business strategy, prevailing economic
conditions and financial, business and other factors, many of which are beyond
the Company's control. The degree to which the Company is leveraged also may
impair its ability to obtain additional financing on acceptable terms, if at
all. If the Company experiences unanticipated costs, write-offs of investments,
receivables or other assets or operating or other losses, the Company's
leverage could increase. Such increased leverage (i) could adversely affect the
ability of the Company to obtain additional financing in the future for working
capital, acquisitions, capital expenditures or other purposes should it need to
do so, (ii) will require that a substantial portion of the Company's cash flow
from operations be dedicated to debt service, (iii) could place the Company at
a competitive disadvantage, if it is more highly leveraged than its
competitors, and (iv) could make the Company more vulnerable to a downturn in
its business.
The Company's primary sources of liquidity through at least December 31,
1998 are expected to be its cash, cash equivalents and marketable securities,
the net proceeds from sales of Securities and further issuances of debt or
equity. These sources of liquidity are expected to be sufficient to fund the
Company's liquidity requirements for at least the next 12 months if the
Company's future operations are consistent with management's current growth
expectations. The type, timing and terms of financing selected by the Company
will be dependent upon the Company's cash needs, the availability of other
financing sources and the prevailing conditions in the financial markets. There
can be no assurance that any such sources will be available to the Company at
any given time or as to the favorableness of the terms on which such sources may
be available.
Dependence on Principal Client. All of the Company's revenues in 1994 and
1995 and 65%, 45%, 32% and 22% of its revenues in 1996 and the three-month
periods ended March 31, June 30, and September 30, 1997, respectively, were
generated under management contracts with Greater Metropolitan Medical
Services, P.C. ("GMMS"), a multi-specialty medical practice that specializes in
the evaluation, diagnosis and treatment of injured patients. GMMS is 95% owned
by a neurologist who is also a co-founder and principal shareholder of the
Company. A substantial part of the growth in the Company's business is a direct
result of the growth of GMMS's medical practice. The continued vitality of the
GMMS medical practice is subject to numerous risks, including the loss of its
principal shareholder or key medical personnel, malpractice claims and
liability for failure to comply with applicable regulations. The loss of this
client or the curtailment of its practice, including as a result of the death
or disability of its principal shareholder, could have a material adverse
effect on the Company.
GMMS's failure to operate successfully could jeopardize its ability to pay
management fees to the Company. Moreover, although the two management services
agreements between the Company and GMMS, which cover all management services
provided by the Company, expire in June 2025 and July 2001, respectively (with
a provision for the automatic extension of the latter agreement in five-year
intervals at the option of the Company), there is no assurance that the Company
and GMMS will continue to maintain a productive working relationship.
At September 30, 1997, $54,166,000, or 59.5%, of the Company's accounts
receivable were due from GMMS. These receivables are collateralized by patient
service receivables due to GMMS that were valued at $72,932,000 at such date.
GMMS's ability to pay the Company is dependent upon the Company's ability to
collect the patient service receivables on behalf of GMMS. On a quarterly basis,
the Company reviews, based on estimated rates of collection for each class of
patient service and estimated allowances for uncollectible balances, the
adequacy of GMMS's collateral. From January 1, 1992 through September 30, 1997,
GMMS billed its patients and third-party payors an aggregate of $121,050,000, of
which $45,821,000, or 37.9%, had been collected by September 30, 1997. In order
for GMMS's patient receivables outstanding at September 30, 1997 to cover the
Company's management fees owed by GMMS at that date, 74.3% of such patient
receivables must be collected, representing an overall collection rate of 82.6%
on GMMS's billings through September 30, 1997.
More specifically, at September 30, 1997, $24,735,000, or 33.9%, of GMMS's
total patient service receivables were generated through the performance of
medical services for which GMMS will be paid only upon the successful resolution
of negligence claims by the patients against third parties, either through a
judicial determination or settlement. From January 1,
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1992 to September 30, 1997, GMMS billed approximately $30,024,000 of such
receivables, of which $4,428,000, or 14.7%, had been collected by September 30,
1997. In measuring the adequacy of such receivables as collateral for the
Company's management fees to GMMS, the Company has estimated that it will
collect, on behalf of GMMS, approximately 55% of these outstanding receivable
balances. The Company estimates, based upon industry factors and GMMS's
historical collection experience prior to its association with the Company,
that the entire collection process for these contingent claims generally
ranges from one to seven years. Since 1994, however, the percentage of cases
resolved within two years of providing service has declined, which may result
in an even longer collection cycle or a lower rate of collection. The Company
believes that this decline is the result of payors more consistently deferring
settlement of these matters until just prior to trial.
In evaluating the adequacy of its collateral from GMMS, the Company
considers historical collection patterns important. The Company, however, also
believes that the ultimate collection of receivables is dependent on its
ability to improve its billing and collection process and its relations with
third-party payors. The Company believes that it can achieve the higher
collection rate necessary to assure that the Company's management fees to GMMS
are paid in full; however, there can be no assurance that the Company will
achieve this rate. See the Company's Form 10-Q for the fiscal quarter ended
September 30, 1997. The inability of the Company to collect a significant
portion of its management fees owed by GMMS could have a material adverse
effect on the Company.
Inability to Collect or Delay in Collecting Management Fees. The Company's
physician practice clients are liable to the Company for management fees
regardless of whether the client collects payment for medical services
rendered. However, the Company has historically deferred collecting amounts
owed to it when clients have experienced delays in collecting payments for
medical services. A substantial majority of the accounts receivable generated
by the Company's full service clients, particularly GMMS, remain outstanding
for extended periods. The average days outstanding for the Company's full
service clients' receivables at September 30, 1997 was 350 days. As a result of
this long collection cycle, the Company requires more capital to finance its
receivables than do most other businesses. The inability of the Company's
clients to collect their receivables could adversely affect their ability to
pay the Company's management fees, which in turn, could have a material adverse
effect on the Company.
The requirements of many third-party payors regarding claims submission
are detailed and complex. Payments may be delayed or refused if the payors'
requirements are not complied with in full. Patient receivables are also
subject to rejection by a third-party payor if, in its judgment, the procedures
performed were not medically necessary, if the charges exceed such payor's
allowable fee standards or if the claim forms are completed improperly.
Many third-party payors, particularly insurance carriers covering
automobile no-fault and workers' compensation claims, have traditionally
refused, as a matter of business practice, to pay most claims unless submitted
to arbitration. It is the Company's experience that these insurance carriers
generally delay payment of these claims until just prior to the arbitration
hearing. The Company is generally prepared to take all legally available steps,
including arbitration, to collect the receivables generated by its clients,
whether owned by the Company or by the client.
Government Regulation. The healthcare industry is highly regulated by
numerous laws and regulations at the federal, state and local levels.
Regulatory authorities have broad discretion to interpret and enforce these
laws and promulgate corresponding regulations. Violations of these laws and
regulations (as determined by agencies or judicial authorities) may result in
substantial criminal and/or civil penalties and disqualification from
participation in Medicare, Medicaid and other payor programs. Federal and state
governments also regularly consider new laws and regulations that, if enacted,
could have a material adverse effect on the Company. The Company believes that
its current operations are in material compliance with these laws and
regulations. The structures of the Company's relationships with its medical
practice and hospital clients and its PPO arrangements are also similar in
material respects to that of many firms in the physician practice management
and PPO industries. Nevertheless, the laws and regulations in this area are
extremely complex and subject to changing interpretation. For example, although
the New York State Department of Health recently opined that the prohibition
against professional fee splitting would be violated if a billing service
company entered into a percentage fee
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arrangement with its clients, as the Company's billing services subsidiary does
with certain of its clients, the opinion is inconsistent with prior Department
of Health opinions and common industry practice, and the matter is presently
being re-examined by an inter-agency task force convened by the Department of
Health. Many aspects of the Company's business and business opportunities have
not been the subject of federal or state regulatory review or interpretation,
and the Company has neither obtained nor applied for an opinion of any
regulatory or judicial authority that its business operations are in compliance
with applicable laws and regulations. Thus, there is no assurance that the
Company's operations are or have been in compliance at all times with all such
laws and regulations. In addition, there is no assurance that a court or
regulatory authority will not determine that the Company's past, current or
future operations (including the provision of practice management and billing
services, the purchase and lease-back of client assets, the ownership or
operation of ambulatory surgery facilities, the provision of financing to new
or existing clients, the purchase and/or financing of medical accounts
receivable, the operation of a preferred provider organization, the arrangement
of management care contracts, and, if appropriate, the granting of an equity
interest in the Company to a client) violate applicable laws or regulations.
If the Company's interpretation of the relevant laws and regulations is
inaccurate, the Company's business and its prospects could be materially and
adversely affected. For example, if the Company were determined to be operating
a diagnostic and treatment center or engaged in the corporate practice of
medicine, it could be found guilty of criminal offenses and be subject to
substantial civil penalties, including fines, and an injunction preventing
continuation of its business. The following are among the laws and regulations
that affect the Company's operations and development activities: corporate
practice of medicine; fee splitting; self-referral laws; anti-kickback and
antitrust laws; certificates of need; insurance; regulation of diagnostic
imaging and ambulatory surgery facilities; Medicare; Medicaid; no-fault
insurance and workers' compensation. In addition, the federal and state
governments are considering numerous new laws and regulations that, if enacted
or adopted, could result in comprehensive changes to the healthcare industry
and the payment for, and availability of, healthcare services.
Many aspects of the laws and regulations that cover the Company's
operations and relationships have not been definitively interpreted by
regulatory authorities. Regulatory authorities have broad discretion concerning
how these laws and regulations are interpreted and how they are enforced. The
Company may, therefore, be subject to lengthy and expensive investigations of
its business operations or to prosecutions that may have uncertain merit, by a
variety of state and federal governmental authorities. If the Company or any of
its physician or hospital clients were found by an agency or judicial authority
to be in violation of these laws and regulations, the Company could be subject
to criminal and/or civil penalties, including substantial fines, injunctive
relief and disqualification from participation in Medicare, Medicaid and other
payor programs. Such developments could have a materially adverse effect on the
Company.
Management of Growth and Expansion; Integration of Acquisitions. The
Company is undergoing substantial growth. This growth places significant
demands on the Company's management and its technical, financial and other
resources. To manage its growth effectively, the Company must maintain a high
level of operational quality and efficiency, continue to enhance its
operational, financial and management systems and expand, train and manage its
management and staff. The Company has only limited experience in simultaneously
providing physician practice management services to several practices. To
execute its growth strategy, the Company plans to significantly increase the
number of physician practices under management. There can be no assurance that
the Company will be able to manage growth effectively or attract suitable
management and other personnel and maintain its operational systems, and any
failure to do so could have a material adverse effect on the Company's
business, financial condition and results of operations and the price of its
securities. Furthermore, full integration of a physician practice generally
requires three to four months, and there can be no assurance that there will
not be substantial unanticipated costs or problems associated with the
integration effort or matters existing at the time of acquisition. During the
first three months after an acquisition, the Company's expenses related to the
acquired physician practice may exceed the revenues it realizes from such
practice and, accordingly, any such acquisitions may have a negative effect on
the Company's operating results. As the Company pursues its expansion strategy,
there can be no assurance that the Company will be able to continue to
successfully integrate acquired physician practices and any failure or
inability to do so may have a material adverse effect on the Company's results
of operations or financial condition and the Company's ability to continue its
expansion.
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Ability to Expand Business. The Company's expansion strategy includes
increasing the number and type of medical practices to which it provides
management services in its current market, other areas in New York State and
selected other markets including New Jersey, and securing contracts on behalf
of its clients with managed care organizations. The Company intends to identify
primary care and specialty medical practices to be acquired by existing clients
or to become clients of the Company, possibly in conjunction with the Company's
purchase of certain fixed assets and/or accounts receivable of such medical
practices. There is no assurance, however, that suitable medical practices will
be identified that are either willing to be acquired or to contract for the
management services offered by the Company. In addition, the Company may
compete for acquisition opportunities with companies that have greater
resources than the Company. Moreover, there is no assurance that the Company
can expand its business outside the New York metropolitan area or into other
states. In order to operate effectively in new locations, the Company must
achieve acceptance in the local market and, in order to operate in other
states, the Company must adapt its procedures to each such state's regulatory
requirements and systems.
Dependence on Third-Party Payor Reimbursements. The Company's engagement
by its full service clients and certain other physician practice clients is
based, in part, on such clients' need for the Company's receivables collection
skills and its ability to collect payments from third-party payors, primarily
automobile no-fault carriers and workers compensation insurers as expeditiously
as feasible. See "Inability to Collect or Delay in Collecting Management Fees"
above. If the laws and regulations covering these third-party payors are
amended, rescinded or overturned with the effect of eliminating this system of
payment reimbursement for injured parties, the ability of the Company to market
its management services could be adversely affected.
Risk of Lower Margins. Certain services offered by the Company are
provided in accordance with fee schedules based on the Company's estimate of
the cost of providing these services. Such fee schedules are not readily
subject to modification. Accordingly, an unanticipated increase in costs, such
as those for personnel, space, equipment or capital, would have a substantial
and adverse impact on the Company's operating margins and net income. There is
no assurance that the Company's actual costs will not exceed its estimated
costs. Both the professional fees earned by hospitals and medical practices and
the cost of providing non-medical services to them vary substantially with the
nature of the medical activities undertaken, the effectiveness of the medical
services provided, the location of the hospital or medical practice and
numerous other factors. Further, there is no assurance that the Company's
future business relationships will provide margins comparable to those
currently earned under existing agreements.
Cost Containment and Reduction in Reimbursement Rates. Government and
private third-party payors are seeking to contain healthcare costs by imposing
lower reimbursement and higher utilization rates and negotiating reduced
payment arrangements with service providers. One method for achieving this
objective has been the use of a resource-based relative value scale ("RBRVS")
payment methodology for physician services, initially implemented by the
federal government through the Medicare program. The RBRVS fee schedule pays
similarly situated physicians the same amount for the same services, with
certain geographical and other adjustments. The RBRVS is adjusted each year,
and is subject to increases or decreases at the discretion of Congress. The
RBRVS payment system has resulted in reduced payment rates for certain of the
procedures historically provided by the physician groups managed by the
Company. Management estimates that 30% of the 1996 revenues of physician groups
to which the Company now provides broad based management services are derived
from government sponsored healthcare programs (principally, Medicare, Medicaid
and state reimbursed programs) paid on the basis of RBRVS. Payment systems
based on RBRVS have also been adopted by certain private third-party payors and
may become a predominant fee for service payment methodology, which could
reduce payments by those third-party payors. Rates paid by many private
third-party payors, including those that provide Medicare supplemental
insurance, are based on the physician and hospital's usual and customary
charges, which are generally higher than Medicare payment rates. A decrease in
the number of privately insured patients seen by the practices managed by the
Company could cause the revenues of such practices to decrease and in turn
adversely affect the Company's results of operations. Thus, there can be no
assurance that the Company's revenues from its relationship with such
affiliated physicians will be sufficient to achieve or maintain profitability.
The Company believes that cost containment trends will continue to result in a
reduction from historical levels in per-patient revenue for medical practices.
Further reductions in payments to physicians or other
7
<PAGE>
changes in reimbursement for healthcare services could have an adverse effect
on the Company's operations. There can be no assurance that the effect of any
or all of these changes in third-party reimbursement could be offset by the
Company through cost reductions, increased volume, introduction of new services
and systems or otherwise.
Risks Associated with Capitated Fee and Other Managed Care
Arrangements. The New York healthcare industry is continuing to experience
significant growth in the number of patients covered by health maintenance,
preferred provider and other managed care organizations ("MCOs"), including
patients covered by Medicare and Medicaid, automobile no-fault and workers'
compensation insurance. Access to the populations covered by these managed care
arrangements requires that the practices managed by the Company (or the Company
on their behalf) contract with, and arrange for their physicians to be admitted
as participating providers of, such MCOs. MCO arrangements often contain
mechanisms intended to control or reduce utilization of services and may also
provide for provider reimbursement on a discounted fee-for-service or,
increasingly, on a risk-sharing or capitated basis. Under these arrangements,
the healthcare provider often receives a predetermined amount per patient per
month in exchange for providing specified services to patients covered by the
arrangement. Such arrangements pass the economic risk of providing care from
the payor to the provider. While the growth of capitation arrangements could
result in greater predictability of revenues for those clients of the Company
that enter into such arrangements, it may create new risks and uncertainties
for the profitability of these clients and their ability to pay the Company's
management fees. Additionally, the Company may be required to negotiate reduced
fee or risk sharing arrangements for its clients to maintain their competitive
position in the marketplace. There can be no assurance that the physicians who
work for the Company's clients will be included in MCOs or that the Company
will be able to negotiate satisfactory MCO arrangements for its clients or be
able to provide the service of negotiating such arrangements at commercially
reasonable rates. To the extent that medical practice clients have reduced
profitability as a result of MCO arrangements, there can be no assurance that
the Company will be able to derive sufficient revenues from its relationships
with such clients to maintain profitability or sustain its current level of
operations.
Competition. The medical practice management field is highly competitive.
Potential competitors include large hospitals and a number of public
corporations operating through a regional or national network of offices that
have greater financial and other resources than the Company. A number of large
hospitals in New York State and elsewhere have acquired medical practices and
this trend is expected to continue. Further, certain national physician
practice management companies have recently begun to enter the New York
healthcare market on a limited basis. The Company expects that more competition
will develop, in part as a result of its having demonstrated that management
companies can operate in the highly regulated New York environment.
Upgrade of Information Systems; Technological Obsolescence. The operations
of the Company and its full service clients are heavily dependent on the
Company's information systems. The Company is seeking to develop, in
collaboration with its clients and with the assistance of outside consultants,
new management information systems, including physician practice management
software, a new electronic medical record system and a wide area network to
link physicians in remote locations with their medical practices.
Implementation of the new information systems will require a transition period
during which various Company and client functions must be converted to the new
systems. This conversion process may entail errors, defects or prolonged
downtime, especially at the outset, and such errors, defects or downtime could
have a material adverse effect on the Company either directly or indirectly as
a result of damage or harm to its clients' medical practices. While management
believes that conversion to the new systems will be completed within three
years, there is no assurance that the transition will be completed in a timely
manner.
Both the software and hardware used by the Company in connection with the
services it provides have been subject to rapid technological change. Although
the Company believes that its technology can be upgraded as necessary, the
development of new technologies or refinements of existing technology could
make the Company's existing equipment obsolete. Although the Company is not
currently aware of any pending technological developments that would be likely
to have a material adverse effect on its business, there is no assurance that
such developments will not occur.
Dependence Upon Key Personnel. The Company is dependent upon the expertise
and abilities of its management, including its Chairman and Chief Executive
Officer, Steven Rabinovici. The loss of the services of
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<PAGE>
Mr. Rabinovici or other key members of management could have a material adverse
effect on the business of the Company. The Company is also indirectly dependent
on Dr. Lawrence W. Shields at GMMS, whose loss could adversely affect GMMS's
practice and the financial condition and results of operations of the Company.
The Company is the beneficiary of key man insurance policies on the lives of
Steven M. Rabinovici and Dr. Lawrence W. Shields in the amounts of $2,000,000
and $10,000,000, respectively.
Liability to Clients' Patients and Others; Insurance. If misdiagnoses are
made by the Company's clients using equipment furnished by the Company or if
clients' patients or operating personnel suffer injury as a result of using
such equipment or if persons are injured on premises leased by the Company to
its clients, liability claims could be filed by such client or patient, as the
case may be, against the Company. Further, any substantial liability incurred
by a client not covered by insurance could impair that client's ability to pay
management fees to the Company. While the Company seeks to protect itself from
liability claims both by requiring that its clients carry substantial medical
malpractice and other liability insurance and by carrying its own general
liability insurance, there is no assurance that such insurance would be
adequate to fund such claims or that the insurance companies would not find a
basis to deny coverage.
Effective Subordination. The Debt Securities will be obligations solely of
the Company, although certain operations of the Company are currently conducted
by subsidiaries. The subsidiaries are separate and distinct legal entities and,
unless otherwise provided in any Prospectus Supplement, will have no
obligations, contingent or otherwise, to pay any amounts due pursuant to the
Debt Securities or to make any funds available to the Company to enable it to
make payments on the Debt Securities or meet working capital needs or other
liabilities of the Company. The Debt Securities will be effectively
subordinated to all existing and future indebtedness and other liabilities and
commitments of the Company's subsidiaries, including trade payables. Any right
of the Company to receive assets of any subsidiary upon the liquidation or
reorganization of such subsidiary (and the consequent rights of the holders of
the Debt Securities to participate in those assets) will be effectively
subordinated to the claims of such subsidiary's creditors, except to the extent
that the Company is itself recognized as a creditor, in which case the claims
of the Company would still be subordinated to any lien on the assets of such
subsidiary and any indebtedness of such subsidiary senior to that held by the
Company.
Limitation of Director Liability. The Company's Certificate of
Incorporation provides that a director of the Company will not be personally
liable to the Company or its shareholders for monetary damages for breach of
the fiduciary duty of care as a director, including breaches that constitute
gross negligence, subject to certain limitations imposed by the New York
Business Corporation Law. Thus, under certain circumstances, neither the
Company nor the shareholders will be able to recover damages even if directors
take actions that harm the Company.
Potential Adverse Impact on Market Price of Securities; Shares Eligible
for Future Sale; Possible Volatility of Common Share Price. Sales of
substantial numbers of Common Shares in the public market or the perception
that such sales may occur could materially adversely affect the market price of
the Common Shares. On September 30, 1997, 555,555 shares issuable on the
conversion of the Company's outstanding convertible subordinated notes and
27,277 shares issued in connection with a bridge loan entered into by the
Company prior to its initial public offering were covered by an effective
Registration Statement on Form S-3 and may be publicly sold in the discretion
of their beneficial owners. In addition, on September 30, 1997, an aggregate of
8,191,414 Common Shares were issuable upon exercise of outstanding options and
warrants and upon conversion of outstanding convertible debentures of the
Company. Any Common Shares offered hereby will be immediately tradable in the
public market without restriction following the issuance of such Common Shares,
unless held by affiliates. Sales in the public market of substantial numbers of
Common Shares can be expected to affect the price of the Common Shares and
could impair the Company's ability to raise additional capital through equity
offerings. Securities of many companies, in particular newer and smaller
companies, have experienced substantial fluctuations and volatility that in
some cases have been unrelated or disproportionate to the performance of the
companies themselves. Operating results of the Company, changes in general
conditions in the economy or the healthcare industry or other developments
affecting the Company or its competitors could cause the market price of the
Common Shares to fluctuate substantially.
No Prior Public Trading Market for the Debt Securities and Preferred
Shares. Prior to the offering of any series of Debt Securities or Preferred
Shares hereunder, there will have been no public market for such
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<PAGE>
securities and there can be no assurance as to the liquidity of the trading
market for such securities or that an active public market will develop or, if
developed, will continue. If an active public market does not develop or is not
maintained, the market price and liquidity of Debt Securities or Preferred
Shares, as the case may be, may be adversely affected.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the ratios of consolidated earnings to fixed charges for
the Company for each of the fiscal years ended December 31, 1993 (the Company's
first year of operations) through 1996 and for the nine months ended September
30, 1996 and 1997:
<TABLE>
<CAPTION>
Fiscal Year Ended Nine Months Ended
December 31 September 30
------------------------------------------ -----------------------
1993 1994 1995 1996 1996 1997
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges N/A* N/A* 133.35 to 1 4.26 to 1 4.31 to 1 2.58 to 1
</TABLE>
- ------------
* There were no fixed charges during this year.
For purposes of computing this ratio, earnings are defined as income
before income taxes plus fixed charges. Fixed charges are interest expense
(including the amortization of deferred debt issuance costs) and the portion of
rental expense that is representative of the interest factor (deemed to be
one-third of minimum operating lease rentals).
USE OF PROCEEDS
Except as may otherwise be set forth in the applicable Prospectus
Supplement, the Company intends to use the net proceeds from the sale of
Securities offered hereby for working capital and general corporate purposes,
which may include financing of the Company's expansion program or repayment of
any outstanding indebtedness of the Company. Pending any of the foregoing
applications, the net proceeds may be invested temporarily in short-term,
investment grade interest bearing securities.
10
<PAGE>
MANAGEMENT
Executive Officers and Directors
The executive officers and directors of the Company and their respective
ages as of September 30, 1997 are as follows:
<TABLE>
<CAPTION>
Name Age Position
- ---------------------------------- ----- ------------------------------------------------------------
<S> <C> <C>
Steven M. Rabinovici ............ 45 Chairman of the Board and Chief Executive Officer
Arthur L. Goldberg ............ 58 Senior Executive Vice President, Chief Operating Officer,
Chief Financial Officer and Director
Dennis W. Simmons ............... 47 Senior Executive Vice President
Kenneth S. Schwartz, M.D. ...... 52 Executive Vice President - Medical Affairs and Business
Development
Joseph M. Scotti ............... 54 Executive Vice President - Acquisition Analysis, Treasurer,
Secretary
Robert Keating .................. 56 Senior Executive Vice President, Director of Operations -
Medical Legal Services
John T. Dooley .................. 54 Vice President and Chief Information Officer
Richard DeMaio .................. 40 Senior Vice President - Operations
Claire Cardone .................. 51 Senior Vice President - Operations
Alan Goldstein .................. 50 Vice President - Finance and Chief Accounting Officer
Steven Cohn ..................... 48 Director
Steven A. Hirsh ............... 57 Director
Joseph S. Tocci ............... 57 Director
</TABLE>
All directors hold office until the next annual meeting of shareholders
and until their successors are duly elected and qualified. Directors, other
than officers or employees of the Company or holders of 10% or more of its
shares, receive an option upon taking office to purchase 20,000 Common Shares
exercisable at the fair market value on the date of grant. Mr. Hirsh has waived
this grant. Officers are elected to serve, subject to the discretion of the
Board of Directors, until their successors are appointed.
Steven M. Rabinovici has been Chairman of the Board, Chief Executive
Officer and a director of the Company since December 28, 1995. From December
31, 1992 through December 27, 1995, he was the President, Chief Executive
Officer and a director of MMI. He is a founder of the Company and also provided
certain consulting services to it during 1994 and 1995. From July 1990 through
December 31, 1992, he was an independent healthcare and business consultant.
Prior thereto, from December 1979 until July 1990, Mr. Rabinovici served as
President of Animed, Inc. (originally known as Cardiopet, Inc.), an animal care
business, which was liquidated pursuant to proceedings commenced under the
Federal Bankruptcy Code in 1989. On July 21, 1992, MEBE Enterprises, Inc.
("MEBE"), the owner and operator of a single Roy Rogers fast food restaurant,
filed for protection under Chapter 11 of the Bankruptcy Code. Mr. Rabinovici
was a founder and principal of MEBE. Earlier in his career, Mr. Rabinovici had
more than ten years experience in hospital administration, including
approximately two years as associate administrator of Brookdale Hospital
Medical Center, a 1,000 bed teaching hospital, and two years as the
administrator of the Division of Psychiatry, Cornell University New York
Hospital. Mr. Rabinovici has over 15 years of experience in the health care
industry.
Arthur L. Goldberg has been Senior Executive Vice President and Chief
Operating Officer of the Company since April 2, 1996 and Chief Financial
Officer and a director of the Company since July 1997. From August 1993 through
March 1996 he was an independent management consultant. From December 1990
through August 1993, he was the Chief Financial Officer of Elek-Tek, Inc., a
reseller of computer and related equipment. Mr. Goldberg has over 25 years of
experience in a variety of senior financial and operational management
positions.
Dennis W. Simmons has been Senior Executive Vice President of the Company
since September 23, 1997. From April 2, 1996 to September 22, 1997, he was the
Executive Vice President of Practice Development and Managed Care. From
November 1992 to March 1996, he was the Senior Vice President for Coastal
Physician Group, Inc. Prior to November 1992, he worked for Medical Care
Development, Inc. as a consultant to the Saudi Arabian government and United
Healthcare Corp. in Central Texas beginning in October 1985. Mr. Simmons has
over 20 years of healthcare experience.
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<PAGE>
Kenneth S. Schwartz, M.D. has been Executive Vice President- Medical
Affairs of the Company since September 23, 1997. From July 1997 to September
22, 1997, he was the Vice President - Medical Affairs of the Company. Dr.
Schwartz has been the Director of Radiology, St. Francis Hospital,
Poughkeepsie, N.Y and the Director at Hudson Imaging Associates, P.C.,
Jefferson Valley, N.Y. since January 1996 and November 1995, respectively. From
March 1995 through November 1996, Dr. Schwartz was the Systems Director,
Radiology and Imaging Services, St. Francis Hospital and Medical Center-Saint
Francis and Mount Sinai Campuses, Hartford, CT. From 1991 through 1995, he was
the Medical Director, Putnam Hospital Center, Carmel, N.Y. and from 1981
through 1995 the Director of Northern Metropolitan Radiology Associates, P.C.,
which became managed by the Company in August 1996. Dr. Schwartz has been a
member of the Board of Directors of BLC Financial Services, Inc. since June
1997. Dr. Schwartz has been a physician for over 20 years.
Joseph M. Scotti has been Executive Vice President -- Acquisition Analysis
since January 1997 and Treasurer and Secretary of the Company since December
1995. From December 28, 1995 until January 1997, Mr. Scotti was also Vice
President and Chief Financial Officer of CMI. From January 1993 through
December 27, 1995, he held similar positions with MMI. From February 1992 to
January 1993, Mr. Scotti was a consultant to Burke & Burke, a food store chain.
Robert Keating has been Senior Executive Vice President, Director of
Operations - Medical Legal Services of the Company since April 8, 1996. From
January 1995 to April 7, 1996, Mr. Keating was the Administrative Judge, Second
Judicial District, Supreme Court, State of New York. Prior thereto he was the
Administrative Judge, Criminal Court of the City of New York since April 1985.
Concurrently, from 1992 to present, he has supervised and developed the Midtown
Community Court.
John T. Dooley has been a Vice President and Chief Information Officer of
the Company since September 1996. From May 1996 to September 1996, Mr. Dooley
was the Chief Information Officer for three corporations owned by Long Island
Jewish Medical Center: CHP: The Medical Group, Managed Health Inc. and LIJ-MS.
From January 1995 to May 1996, Mr. Dooley served as the Chief Information
Officer of New Hanover Regional Medical Center. From March 1994 to December
1995, Mr. Dooley was a Senior Manager of Implementation Specialists for
Healthcare, a management consulting firm specializing in healthcare systems.
Prior thereto, from December 1992 to February 1995, Mr. Dooley served as the
Chief Information Officer of North Shore University Hospitals, a series of
tertiary care teaching and community hospitals comprising 1,250 beds. From May
1988 to December 1992, Mr. Dooley served as the Assistant Vice President,
Information Services of St. Vincent's Hospital and Medical Center, an 813 bed
tertiary care teaching hospital located in New York City. Mr. Dooley has over
25 years of experience in health care information systems.
Richard DeMaio has been Senior Vice President of Operations of the Company
since September 23, 1997. From March 1994 to September 22, 1997, he was the
Vice President of Operations of the Company. From March 1989 through February
1994, he was assistant administrator at the Long Island Jewish Medical Center
with administrative responsibilities for various clinical and support services.
Mr. DeMaio is a member of the American College of Healthcare Executives and has
also served on the Executive Committee of the Metropolitan Health
Administrators Association.
Claire A. Cardone has been Senior Vice President of Operations for
diagnostic imaging of the Company since September 23, 1997. From December 28,
1995 to September 22, 1997, she was the Vice President of Operations for
diagnostic imaging of the Company. From 1993 to December 27, 1995, she was the
Vice President of Operations of MMI. From 1985 to 1993, Ms. Cardone was Senior
Associate Administrator at St. John's Episcopal Hospital, a 300 bed community
teaching hospital in Queens, New York.
Alan Goldstein has been Vice President - Finance and Chief Accounting
Officer since September 23, 1997. From January 1, 1997 through May 30, 1997, he
was an independent financial consultant to Kollsman, Inc. From June 1, 1994
through December 31, 1996, he was Vice President and Chief Financial Officer of
RF International, Inc., an international transportation services company. Prior
thereto he was an independent financial consultant from June 1993 and the Vice
President of Finance and Administration of Janus Systems, Inc. (a division of
Sequa Corporation), a systems integrator and software developer from September
1990. He is a Certified Public Accountant with over 12 years of public
accounting experience.
Steven Cohn has been a director of the Company since January 3, 1996 and a
member of its Audit and Compensation Committees since April 2, 1996. Mr. Cohn
is a member of the law firm of Goldberg & Cohn.
12
<PAGE>
Steven A. Hirsh has been a director of the Company and a member of its
Audit and Compensation Committees since September 30, 1996. Mr. Hirsh has been
a portfolio manager for William Harris & Co., a financial services company, for
more than five years. Since 1994, he has also been Chairman, Chief Executive
Officer and President of Astro Communications, Inc., a manufacturer of strobe
lights.
Joseph S. Tocci has been a director of the Company and a member of its
Audit and Compensation Committees since May 12, 1997. He is a founder and has
been a managing partner of Tocci, Goldstein & Co. (formerly Tocci and Marcano),
certified public accountants, for over the past five years. From October 1993
through December 1995, Mr. Tocci was a director of MMI, which was acquired by
the Company in a merger in January 1996.
Committees of the Board of Directors
The Company's Board of Directors has established Compensation and Audit
Committees, whose members are Messrs. Cohn, Hirsh and Tocci. The Compensation
Committee reviews and recommends to the Board of Directors the compensation and
benefits of all officers of the Company, reviews general policy matters relating
to compensation and benefits of employees of the Company and administers the
issuance of stock options and discretionary cash bonuses to the Company's
officers, employees, directors and consultants. The Audit Committee meets with
management and the Company's independent public accountants to determine the
adequacy of internal controls and other financial reporting matters. It is the
intention of the Company to appoint only independent directors to the Audit and
Compensation Committees.
13
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any
Prospectus Supplement will be described therein. The Senior Debt Securities
will be issued under the Senior Indenture (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank, trustee (the "Senior Trustee") prior to
the issuance of the Senior Debt Securities. The Subordinated Debt Securities
are to be issued under the Subordinated Indenture (the "Subordinated
Indenture"), between the Company and The Chase Manhattan Bank, trustee (the
"Subordinated Trustee"). The Senior Indenture and the Subordinated Indenture
are sometimes referred to individually as an "Indenture" and collectively as
the "Indentures". The Senior Trustee and the Subordinated Trustee are sometimes
referred to individually as a "Trustee" and collectively as the "Trustees". The
forms of Senior Indenture and Subordinated Indenture are filed as exhibits to
the Registration Statement. Each Indenture is subject to and is governed by the
Trust Indenture Act of 1939, as amended.
The statements herein relating to the Debt Securities and the Indentures
are summaries and are subject to the detailed provisions of the Indentures. The
following summaries of certain provisions of the Indentures do not purport to
be complete and are subject to, and qualified in their entirety by reference
to, the Indentures, and, with respect to any particular Debt Securities, to the
description thereof in the applicable Prospectus Supplement. The definitions of
certain capitalized terms used in the following summary are set forth below
under "Certain Definitions".
General
Neither Indenture limits the aggregate amount of Debt Securities that may
be issued thereunder, and Debt Securities may be issued thereunder from time to
time in separate series up to the aggregate amount from time to time authorized
by the Company for each series. The Senior Debt Securities when issued will be
direct, unsecured obligations of the Company and will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The Senior Debt
Securities will be effectively subordinated to any secured indebtedness of the
Company and to any indebtedness or other obligations, including trade payables,
of the Company's subsidiaries to the extent of the assets of such subsidiaries.
The Subordinated Debt Securities will be unsecured obligations of the Company
and will be subordinated in right of payment to all Senior Indebtedness.
The applicable Prospectus Supplement will describe the following terms of
the series of Debt Securities in respect of which this Prospectus is being
delivered:
(1) The title of such Debt Securities and whether such Debt Securities
will be Senior Debt Securities or Subordinated Debt Securities.
(2) The aggregate principal amount of such Debt Securities.
(3) The date or dates on which such Debt Securities will mature.
(4) The rate or rates of interest, if any, or the method of calculation
thereof, that such Debt Securities will bear, the date or dates from which
any such interest will accrue, the interest payment dates on which any such
interest on such Debt Securities will be payable and the regular record
date for any interest payable on any interest payment date.
(5) The place or places where the principal of and any premium and
interest on such Debt Securities will be payable.
(6) The period or periods within which, the events upon the occurrence
of which, and the price or prices at which, such Debt Securities may,
pursuant to any optional or mandatory provisions, be redeemed or purchased,
in whole or in part, by the Company and any terms and conditions relevant
thereto.
(7) The obligations of the Company, if any, to redeem or repurchase such
Debt Securities at the option of the holders thereof.
(8) The denominations in which any such Debt Securities will be
issuable, if other than denominations of $1,000 and any integral multiple
thereof.
14
<PAGE>
(9) Whether such Debt Securities will be convertible into or
exchangeable for Common Shares or other Securities and, if so, the terms
and conditions upon which such Debt Securities will be convertible or
exchangeable.
(10) Any index or formula used to determine the amount of payments of
principal of and any premium and interest on such Debt Securities.
(11) The provision for any sinking fund or analogous payments.
(12) If other than the principal amount thereof, the portion of the
principal amount of such Debt Securities that will be payable upon
acceleration of the maturity thereof.
(13) If the principal amount of any Debt Securities that will be payable
at the maturity thereof will not be determinable as of any date prior to
such maturity, the amount that will be deemed to be the outstanding
principal amount of such Debt Securities.
(14) Any provisions in modification of, in addition to or in lieu of any
of the provisions concerning defeasance and covenant defeasance contained
in the applicable Indenture that will be applicable to such Debt
Securities.
(15) Any provisions granting special rights to the holders of Debt
Securities upon the occurrence of such events as may be specified.
(16) Whether any of such Debt Securities are to be issuable in permanent
global form ("Global Security") and if so, the terms and conditions, if
any, upon which interests in such Debt Securities in global form may be
exchanged, in whole or in part, for the individual Debt Securities
represented thereby.
(17) The applicability of, and modifications to, any provisions
described under "Events of Default" and any additional Event of Default
applicable thereto.
(18) Any covenants applicable to such Debt Securities in addition to, or
in lieu of, the covenants described under "--Certain Covenants of the
Company".
(19) Whether such Debt Securities are secured.
(20) If other than the applicable Trustee, any fiscal or authenticating
or paying agent, issuing and paying agent, transfer agent or registrar or
any other person or entity to act in connection with such Debt Securities
for or on behalf of the holders thereof or the Company or an affiliate.
(21) The person to whom any interest on any Debt Security of the series
shall be payable if other than the person in whose name the Debt Security
is registered on the regular record date.
(22) Any other specific terms, conditions or provisions of such Debt
Securities.
The Debt Securities referred to on the cover page of this Prospectus, and
any additional debt securities issued under an Indenture, are herein
collectively referred to, while a single Trustee is acting with respect to all
debt securities issued under such Indenture, as the "Indenture Securities".
Each Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Indenture Securities. At a time when
two or more Trustees are acting under either Indenture, each with respect to
only certain series, the term "Indenture Securities" as used herein shall mean
the one or more series with respect to which each respective Trustee is acting.
In the event that there is more than one Trustee under either Indenture, the
powers and trust obligations of each Trustee as described herein will extend
only to the one or more series of Indenture Securities for which it is the
Trustee. If two or more Trustees are acting under either Indenture, then the
Indenture Securities for which each Trustee is acting would in effect be
treated as if issued under separate indentures.
Debt Securities may be issued at a discount from their principal amount.
United States federal income tax considerations and other special
considerations applicable to any such original issue discount Debt Securities
will be described in the applicable Prospectus Supplement.
15
<PAGE>
Certain Definitions
"Capital Stock" of any person means any and all shares, interests,
partnership interests, participations, rights in or other equivalents (however
designated) of such person's equity interest (however designated).
"Capitalized Lease Obligation" means, with respect to any person, an
obligation incurred or assumed under or in connection with any capital lease of
real or personal property that, an obligation incurred or assumed under or in
connection with any capital lease of real or personal property that, in
accordance with GAAP, has been recorded as a capitalized lease.
"Closing Date" means, with respect to any Debt Securities, the date on
which such Debt Securities are originally issued under the applicable
Indenture.
"Consolidated Net Worth" means, at any date of determination,
shareholders' equity of the Company and its Restricted Subsidiaries as set
forth on the most recently available quarterly or annual consolidated balance
sheet of the Company and its Restricted Subsidiaries, less any amounts
attributable to Disqualified Stock or any equity security convertible into or
exchangeable for Debt, the cost of treasury stock and the principal amount of
any promissory notes receivable from the sale of the Capital Stock of the
Company or any of its Restricted Subsidiaries, each item to be determined in
conformity with GAAP (excluding the effects of foreign currency adjustments
under Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 52).
"Debt" means (without duplication), with respect to any person, whether
recourse is to all or a portion of the assets of such person and whether or not
contingent (a) every obligation of such person for money borrowed, (b) every
obligation of such person evidenced by bonds, debentures, notes or other
similar instruments, (c) every reimbursement obligation of such person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such person, (d) every obligation of such person issued or
assumed as the deferred purchase price of property or services, (e) Capitalized
Lease Obligations, (f) all Disqualified Stock of such person valued at its
maximum fixed repurchase price, plus accrued and unpaid dividends, (g) all
obligations of such person under or in respect of Hedging Agreements, and (h)
ever obligation of the type referred to in clauses (a) through (g) if another
person and all dividends of another person the payment of which, in either
case, such person has guaranteed. For purposes of this definition, the "maximum
fixed repurchase price" of any Disqualified Stock that does not have a fixed
repurchase price will be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were repurchased on any date
on which Debt is required to be determined pursuant to the applicable
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Stock, such fair market value will be determined in
good faith by the board of directors of the issuer of such Disqualified Stock.
Notwithstanding the foregoing, trade accounts payable and accrued liabilities
arising in the ordinary course of business and any liability for federal, state
or local taxes or other taxes owed by such person will not be considered Debt
for purposes of this definition.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Disqualified Stock" means any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise (i) is or upon the happening of any
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the Notes, (ii) is redeemable at the option of the holder
thereof at any time prior to such final Stated Maturity or (iii) at the option
of the holder thereof, is convertible into or exchangeable for debt securities
at any time prior to such final Stated Maturity.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, that
are in effect from time to time.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim, or
preference or priority or other encumbrance upon or with respect to any
property of any kind, real or personal, movable or immovable, now owned or
hereafter acquired. A person will be deemed to own subject to a Lien any
property that such person has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
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"Restricted Subsidiary" means any Subsidiary other than an Unrestricted
Subsidiary.
"Significant Subsidiary" means any Restricted Subsidiary of the Company
that together with its Subsidiaries, (a) for the most recent fiscal year of the
Company, accounted for more than 10% of the consolidated net sales of the
Company and its Restricted Subsidiaries or (b) as to the end of such fiscal
year, was the owner of more than 10% of the consolidated assets of the Company
and its Restricted Subsidiaries, in the case of either (a) or (b), as set forth
on the most recently available consolidated financial statements of the Company
for such fiscal year or (c) was organized or acquired since the end of such
fiscal year and would have been a Significant Subsidiary if it had been owned
during such fiscal year.
"Stated Maturity" means, when used with respect to any Debt Security or
any installment of interest thereon, the date specified in such Debt Security
as the fixed date on which the principal of such Debt Security or installment
of interest is due and payable and, when used with respect to any other Debt,
means the date specified in the instrument governing such Debt as the fixed
date on which the principal of such Debt or any installment of interest thereon
is due and payable.
"Subsidiary" means any person a majority of the equity ownership or Voting
Stock of which is at the time owned, directly or indirectly, by the Company
and/or one or more other Subsidiaries of the Company.
"Unrestricted Subsidiary" means (a) any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary in accordance with the
"Unrestricted Subsidiaries" covenant and (b) any Subsidiary of an Unrestricted
Subsidiary.
Certain Covenants of the Company
Unless otherwise specified in the applicable Prospectus Supplement, the
following covenants contained in the Indentures shall be applicable with
respect to each series of Debt Securities:
Limitation on Investment Company Status. The Company shall not take any
action, or otherwise permit to exist any circumstance, that would require the
Company or any of its subsidiaries to register as an "investment company" under
the Investment Company Act of 1940, as amended.
Reports. The Company will be required to file on a timely basis with the
Commission, to the extent such filings are accepted by the Commission and
whether or not the Company has a class of securities registered under the
Exchange Act, the annual reports, quarterly reports and other documents that
the Company would be required to file if it were subject to Section 13 or 15(d)
of the Exchange Act. The Company will also be required (a) to file with the
applicable Trustee, and provide to each holder of Debt Securities, without cost
to such holder, copies of such reports and documents within 15 days after the
date on which the Company files such reports and documents with the Commission
or the date on which the Company would be required to file such reports and
documents if the Company were so require and (b) if filing such reports and
documents with the Commission is not accepted by the Commission or is
prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective holder of Debt Securities
promptly upon written request.
Subordination of Subordinated Debt Securities
The payment of the principal of (and premium, if any, on) and interest, if
any, on the Subordinated Debt Securities will be expressly subordinated, to the
extent and in the manner set forth in the Subordinated Indenture, in right of
payment to the prior payment in full of all present and future Senior
Indebtedness of the Company. If so indicated in the applicable Prospectus
Supplement, the provisions regarding subordination of the Subordinated Debt
Securities set forth in the Subordinated Indenture (or the definition of any
term used therein) may differ from the provisions set forth below.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or
similar proceedings of the Company (except in connection with the consolidation
or merger of the Company or its liquidation or dissolution following the
conveyance, transfer or lease of its properties and assets substantially as an
entirety, upon the terms and conditions described under "Consolidation, Merger
and Sale of
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Assets"), the holders of Senior Debt will first be entitled to receive payment
in full, in cash or cash equivalents, of all amounts due or to become due on or
in respect of such Senior Debt before the holders of Subordinated Debt
Securities are entitled to receive any payment of principal of (or premium, if
any) or interest on the Subordinated Debt Securities or on account of the
purchase or redemption or other acquisition of Subordinated Debt Securities by
the Company or any Subsidiary of the Company. In the event that,
notwithstanding the foregoing, the Subordinated Trustee or the holder of any
Subordinated Debt Securities receives any payment or distribution of assets of
the Company of any kind or character (excluding equity or subordinated
securities of the Company provided for in a plan of reorganization or
readjustment that, in the case of subordinated securities, are subordinated in
right of payment to all Senior Debt to at least the same extent as the
Subordinated Debt Securities are so subordinated), before all the Senior Debt
is paid in full, then such payment or distribution will be held in trust for
the holders of Senior Debt and will be required to be paid over or delivered
forthwith to the trustee in bankruptcy or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid to the extent necessary to pay the Senior Debt in
full.
The Company may not make any payments on account of the Subordinated Debt
Securities or on account of the purchase or redemption or other acquisition of
Subordinated Debt Securities if a default in the payment when due of principal
of (or premium, if any) or interest on Specified Senior Debt has occurred and
is continuing, or a default (a "Senior Payment Default"). In addition, if any
default (other than a Senior Payment Default) with respect to any Specified
Senior Debt permitting the holders thereof (or a trustee or agent on behalf
thereof) to accelerate the maturity thereof (a "Senior Nonmonetary Default")
has occurred and is continuing and the Company and the Subordinated Trustee
have received written notice thereof from an authorized person on behalf of any
holder of Specified Senior Debt, then the Company may not make any payments on
account of the Subordinated Securities for a period (a "blockage period")
commencing on the date the Company and the Subordinated Trustee receive such
written notice (a "Blockage Notice") and ending on the earliest of (x) 179 days
after such date (the "Initial Period"), (y) the date, if any, on which the
Specified Senior Debt to which such default relates is discharged or such
default is waived or otherwise cured and (z) the date, if any, on which such
blockage period has been terminated by written notice to the Company or the
Subordinated Trustee from the person who gave the Blockage Notice. Any number
of additional payment blockage periods shall extend beyond the Initial Period.
After the expiration of the Initial Period, no payment blockage period may be
commenced until at least 181 consecutive days shall have elapsed from the last
day of the Initial Period. No Senior Nonmonetary Default that existed or was
continuing on the date of the commencement of any blockage period with respect
to the Specified Senior Debt initiating such blockage period will be, or can
be, made the basis for the commencement of a subsequent blockage period, unless
such default has been cured or waived for a period of not less than 90
consecutive days. In the event that, notwithstanding the foregoing, the Company
makes any payment to the Subordinated Trustee or the holder of any Subordinated
Debt Securities prohibited by these blockage provisions, then such payment will
be held in trust for the holders of Senior Debt and will be required to be paid
over and delivered forthwith to the holders of the Senior Debt remaining
unpaid, to the extend necessary to pay in full all the Senior Debt.
By reason of such subordination, in the event of insolvency, creditors of
the Company who are not holders of Senior Debt or the Subordinated Debt
Securities may recover less, ratably, than holders of Senior Debt and may
recover more, ratably, than the holders of the Subordinated Debt Securities.
The subordination provisions described above will cease to be applicable
to the Notes upon any defeasance or covenant defeasance of the Notes as
described under "Defeasance or Covenant Defeasance of Indentures".
The terms "Senior Debt" and "Specified Senior Debt" will be defined in the
applicable Prospectus Supplement for an offering of Subordinated Debt
Securities.
If this Prospectus is being delivered in connection with the offering of a
series of Subordinated Debt Securities, the applicable Prospectus Supplement or
the information incorporated by reference therein will set forth the
approximate amount of Senior Debt outstanding as of a recent date.
Events of Default
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute "Events of Default" under each Indenture with respect
to Debt Securities of any series (unless they are inapplicable to such series
of Debt Securities or they are specifically deleted in the supplemental
indenture or the Board Resolution under which such series of Debt Securities is
issued or has been modified):
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(a) default in the payment of any interest on any Debt Security of such
series when it becomes due and payable, and continuance of such default for
a period of 30 days;
(b) default in the payment of the principal of (or premium, if any, on)
any Debt Security of such series when due;
(c) failure to perform or comply with the applicable Indenture
provisions described under "Consolidation, Merger and Sale of Assets";
(d) default in the performance, or breach, of any covenant or agreement
of the Company contained in the applicable Indenture (other than a default
in the performance, or breach, of a covenant or agreement that is
specifically dealt with elsewhere therein), and continuance of such default
or breach for a period of 60 days after written notice has been given to
the Company by the applicable Trustee or to the Company by such Trustee or
to the Company and such Trustee by the holders of at least 25% in aggregate
principal amount of the Debt Securities of such series then outstanding as
provided in such Indenture;
(e) (i) an event of default has occurred under any mortgage, bond,
indenture, loan agreement or other document evidencing an issue of Debt of
the Company or any Significant Subsidiary, which issue has an aggregate
outstanding principal amount of not less than $2,000,000, and such default
has resulted in such Debt becoming, whether by declaration or otherwise,
due and payable prior to the date on which it would otherwise become due
and payable or (ii) a default in any payment when due at final maturity of
any such Debt;
(f) failure by the Company or any of its Subsidiaries to pay one or more
final judgments the uninsured portion of which exceeds in the aggregate
$2,000,000, which judgment or judgments are not paid, discharged or stayed
for a period of 60 days;
(g) the occurrence of certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant Subsidiary;
or
(h) any other Event of Default specified for such series.
If an Event of Default (other than as specified in clause (g) above)
occurs and is continuing under the Indenture applicable to any series of Debt
Securities, the applicable Trustee or the holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
outstanding may declare the principal of all of the outstanding Debt Securities
of such series immediately due and payable and, upon any such declaration, such
principal will become due and payable immediately.
If an Event of Default specified in clause (g) above occurs and is
continuing, then the principal of all of the outstanding Debt Securities of any
series will ipso facto become and be immediately due and payable without any
declaration or other act on the part of the applicable Trustee or any holder of
Debt Securities of such series.
At any time after a declaration of acceleration under either Indenture,
but before a judgment or decree for payment of the money due has been obtained
by the applicable Trustee, the holders of a majority in aggregate principal
amount of the outstanding Debt Securities of any series, by written notice to
the Company and such Trustee, may rescind such declaration and its consequences
if (i) the Company has paid or deposited with such Trustee a sum sufficient to
pay (A) all overdue interest on all Debt Securities of such series, (B) all
unpaid principal of (and premium, if any, on) any outstanding Debt Securities
of such series that has become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debt Securities of
such series, (C) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate borne by the
Debt Securities of such series, and (D) all sums paid or advanced by such
Trustee under such Indenture and the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel; and (ii)
all Events of Default, other than the non-payment of amounts of principal of
(or premium, if any, on) or interest on the Debt Securities of such series that
have become due and solely by such declaration of acceleration have been cured
or waived. No such rescission will affect any subsequent default or impair any
right consequent thereto.
The holders of not less than a majority in aggregate principal amount of
the outstanding Debt Securities of any series may, on behalf of the holders of
all of the Debt Securities of such series, waive any past defaults under
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the applicable Indenture, except a default in the payment of the principal of
(and premium, if any on) or interest on any Debt Securities of such series, or
in respect of a covenant or provision that under such Indenture cannot be
modified or amended without the consent of the holder of each such Debt
Security outstanding.
If a Default or an Event of Default occurs with respect to a series of
Debt Securities and is continuing and is known to either Trustee, the
applicable Trustee will mail to each holder of the Debt Securities of such
series notice of the Default or Event of Default within 90 days after the
occurrence thereof. Except in the case of a Default or an Event of Default in
payment of principal of (and premium, if any, on) or interest on any Debt
Securities of any series, such Trustee may withhold the notice to the holders
of the Debt Securities of such series if a committee of its trust officers in
good faith determines that withholding such notice is in the interests of the
holders of the Debt Securities of such series.
The Company is required to furnish to the Trustees annual statements as to
the performance by the Company of their respective obligations under the
applicable Indenture and as to any default in such performance. The Company is
also required to notify the applicable Trustee within five days of any Default.
Satisfaction and Discharge of the Indentures and the Debt Securities
Upon the request of the Company, an Indenture will cease to be of further
effect (except as to surviving rights of registration of transfer of the Debt
Securities of any series outstanding under such Indenture, as expressly
provided for in such Indenture) and the applicable Trustee, at the expense of
the Company, will execute proper instruments acknowledging satisfaction and
discharge of such Indenture when (a) either (i) all the Debt Securities of any
series theretofore authenticated and delivered (other than destroyed, lost or
stolen Debt Securities of any series that have been replaced or paid and Debt
Securities of any series that have been subject to defeasance under "Defeasance
or Covenant Defeasance of Indentures") have been delivered to such Trustee for
cancellation or (ii) all Debt Securities of any series not theretofore
delivered to such Trustee for cancellation (A) have become due and payable, (B)
will become due and payable at maturity within one year or (C) at to be called
for redemption within one year under arrangements satisfactory to such Trustee
for the giving of notice of redemption by such Trustee in the name, and at the
expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with such Trustee funds in trust for the purpose and in an amount
sufficient to pay and discharge the entire Debt on such Debt Securities of any
series not theretofore delivered to such Trustee for cancellation, for
principal (and premium, if any, on) and interest on the Debt Securities of any
series to the date of such deposit (in the case of Debt Securities of any
series that have become due and payable) or to the Stated Maturity or
Redemption Date (as defined in the Indentures), as the case may be; (b) the
Company has paid or caused to be paid all sums payable under such Indenture by
the Company; and (c) the Company has delivered to such Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided in such Indenture relating to the satisfaction and discharge
of such Indenture have been complied with.
Modification and Waiver
Modifications and amendments of an Indenture may be made by the Company
and the Trustee with the consent of the holders of a majority in aggregate
outstanding principal amount of the Debt Securities of any series to be offered
under the Indenture; provided, however, that no such modification or amendment
may, without the consent of the holder of each outstanding Debt Security of
such series affected thereby,
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Debt Securities of such series, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change any place of payment where any Debt
Securities of such series or any premium or the interest thereon is payable
or impair the right to institute suit for the enforcement of any such
payment after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date);
(b) reduce the percentage in principal amount of outstanding Debt
Securities of such series, the consent of whose holders is required for any
waiver of compliance with certain provisions of, or certain defaults and
their consequences provided for under, such Indenture; or
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(c) in the case of the Subordinated Indenture, modify any provisions
relating to subordination of the Debt Securities of such series in a manner
materially adverse to the holders thereof.
The holders of a majority in aggregate principal amount of the Debt
Securities of any series outstanding may waive compliance with certain
restrictive covenants and provisions of the Indenture with respect to such
series.
Modification and amendment of an Indenture may be made by the Company and
the applicable Trustee thereunder, without the consent of any holder, for any
of the following purposes: (a) to evidence the succession of another person to
the Company as obligor under such Indenture; (b) to add to the covenants of the
Company for the benefit of the holders of all or any series of Indenture
Securities issued under such Indenture and any related coupons or to surrender
any right or power conferred upon the Company by such Indenture; (c) to add
Events of Default for the benefit of the holders of all or any series of
Indenture Securities; (d) to add to or change any provisions of such Indenture
to facilitate the issuance of, or to liberalize the terms of, Bearer
Securities, or to permit or facilitate the issuance of Indenture Securities in
uncertificated form, provided that any such actions do not adversely affect the
holders of such Indenture Securities or any related coupons; (e) to change or
eliminate any provisions of such Indenture, provided that any such change or
elimination will become effective only when there are no such Indenture
Securities outstanding of any series created prior thereto which are entitled
to the benefit of such provisions; (f) in the case of the Senior Debt
Securities to secure the Indenture Securities under the Senior Indenture
pursuant to the Senior Indenture, or otherwise; (g) to establish the form or
terms of such Indenture Securities of any series and any related coupons; (h)
to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under such Indenture by more than
one Trustee; (i) to cure any ambiguity, defect or inconsistency in such
Indenture, provided such action does not adversely affect the interests of
holders of Indenture Securities of a series issued thereunder or any related
coupons in any material respect; or (j) to supplement any of the provisions of
such Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of Indenture Securities thereunder, provided that such
action shall not adversely affect the interests of the holders of any such
Indenture Securities and any related coupons in any material respect.
Consolidation, Merger and Sale of Assets
Unless otherwise provided in the Prospectus Supplement, each Indenture
provides that the Company may not consolidate with or merge with or into any
other person or, directly or indirectly, convey, sell, assign, transfer, lease
or otherwise dispose of its properties and assets substantially as an entirety
to any other person (in one transaction or a series of related transactions),
unless:
(a) either (i) the Company is the surviving corporation or (ii) the
person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person that acquires by sale,
assignment, transfer, lease or other disposition of its properties and
assets of the Company substantially as an entirety (the "Surviving Entity")
(A) is a corporation, partnership or trust organized and validly existing
under the laws of the United States, any state thereof or the District of
Columbia and (B) expressly assumes, by a supplemental indenture in form
satisfactory to the applicable Trustee, all of the Company's obligations
under such Indenture and any Debt Securities issued thereunder;
(b) immediately after giving effect to such transaction and treating any
obligation of the Company or a Restricted Subsidiary in connection with or
as a result of such transaction as having been incurred as of the time of
such transaction, no Default or Event of Default has occurred and is
continuing;
(c) immediately after giving effect to such transaction on a pro forma
basis, the Consolidated Net Worth of the Company (or of the Surviving
Entity if the Company is not the continuing obligor under such Indenture)
is equal to or greater than the Consolidated Net Worth of the Company
immediately prior to such transaction;
(d) immediately after giving effect to such transaction on a pro forma
basis (on the assumption that the transaction occurred at the beginning of
the most recently ended four full fiscal quarter period for which internal
financial statements are available, the Company (or the Surviving Entity if
the Company is not the continuing obligor under such Indenture) could incur
at least $1.00 of additional Debt (other than Permitted Debt (as defined in
such Indenture)) pursuant to the first paragraph of any "Limitation on
Debt" covenant applicable to any series of Debt Securities;
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(e) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of any "Limitation on Liens" covenant applicable to any series
of Debt Securities are complied with; and
(f) the Company delivers, or causes to be delivered, to such Trustee, in
form and substance reasonably satisfactory to such Trustee, an officers'
certificate and an opinion of counsel, each stating that such transaction
complies with the requirements of such Indenture.
In the event of any transaction described in and complying with the
conditions listed in the first paragraph of this covenant and in which the
Company is not the continuing obligor under such Indenture, the Surviving
Entity will succeed to, and be substituted for, and may exercise every right
and power of, the Company under such Indenture, and thereafter the Company will
be discharged from all its obligations and covenants under such Indenture and
the Debt Securities.
Defeasance or Covenant Defeasance of Indentures
Unless the Prospectus Supplement relating to the Offered Debt Securities
otherwise provides, the Company may, at its option and at any time, terminate
the obligations of the Company with respect to the outstanding Debt Securities
of any series ("defeasance"). Such defeasance means that the Company will be
deemed to have paid and discharged the entire Debt represented by the
outstanding Debt Securities of such series, except for (a) the rights of
holders of outstanding Debt Securities of such series to receive payments in
respect of the principal of (and premium, if any, on) and interest on such Debt
Securities when such payments are due, (b) the Company's obligations to issue
temporary Debt Securities of such series, register the transfer or exchange of
any Debt Securities of such series, replace mutilated, destroyed, lost or
stolen Debt Securities of such series, maintain an office or agency for
payments in respect of the Debt Securities of any series and segregate and hold
such payments in trust, (c) the rights, powers, trusts, duties and immunities
of the applicable Trustee and (d) the defeasance provisions of the applicable
Indenture. In addition, the Company may, at its option and at any time, elect
to terminate the obligations of the Company with respect to certain covenants
set forth in such Indenture, and any failure to comply with such obligations
would not constitute a Default or an Event of Default with respect to the Debt
Securities of such series ("covenant defeasance").
In order to exercise either defeasance or covenant defeasance, (a) the
Company must irrevocably deposit or cause to be deposited with the applicable
Trustee, as funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Debt Securities of a series, money
in an amount, of U.S. Government Obligations (as defined in the Indentures)
that through the scheduled payment of principal and interest thereon will
provide money in an amount, or a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants, to
pay and discharge the principal of (and premium, if any, on) and interest on
the outstanding Debt Securities of such series at maturity (or upon redemption,
if applicable) of such principal or installment of interest; (b) no Default or
Event of Default has occurred and is continuing on the date of such deposit or,
insofar as an event of bankruptcy under clause (g) of "Events of Default" above
is concerned, at any time during the period ending on the 91st day after the
date of such deposit; (c) such defeasance or covenant defeasance may not result
in a breach or violation of, or constitute a default under, the Indenture or
any material agreement or instrument to which the Company is a party or by
which it is bound; (d) in the case of defeasance, the Company must deliver to
such Trustee an opinion of counsel stating that the Company has received from,
or there has been published by, the U.S. Internal Revenue Service a ruling, or
there has been a change in applicable federal income tax law, to the effect,
and based thereon such opinion must confirm that, the holders of the
outstanding Debt Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred;
(e) in the case of covenant defeasance, the Company must have delivered to such
Trustee an opinion of counsel to the effect that the Holders of the outstanding
Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such covenant defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred; and (f) the Company must have delivered to such Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for relating to either the defeasance or the covenant
defeasance, as the case may be, have been complied with.
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Governing Law
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York.
Form, Registration, Transfer and Payment
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued only in fully registered form in denominations
of $1,000 or integral multiples thereof. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of principal, premium, if any, and
interest on the Debt Securities will be payable, and the transfer of Debt
Securities will be registerable, at the office or agency of the Company
maintained for such purposes and at any other office or agency maintained for
such purpose. No service charge will be made for any registration of transfer
of the Debt Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge imposed in connection therewith.
All monies paid by the Company to a Paying Agent (as defined in the
Indentures) for the payment of principal of and any premium or interest on any
Debt Security which remain unclaimed for two years after such principal,
premium or interest has become due and payable may be repaid to the Company and
thereafter the Holder (as defined in the Indentures) of such Debt Security may
look only to the Company for payment thereof.
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denomination equal to the portion of the
aggregate principal amount of outstanding Debt Securities of the series to be
represented by such Global Security or Global Securities. Unless and until it
is exchanged in whole or in part for Debt Securities in registered form, a
Global Security may not be registered for transfer or exchange except as a
whole by the Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any nominee to a successor
Depositary or a nominee of such successor Depositary and except in the
circumstances described in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depositary will be represented by a Global Security
registered in the name of such Depositary or its nominee. Upon the issuance of
such Global Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters of, or agents for, such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Security. Ownership
of beneficial interests in such Global Security by persons that hold through
participants will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
Debt Securities will be issued in fully registered, certificated form
("Definitive Securities") to holders or their nominees, rather than to the
Depositary or its nominee, only if (a) the Depositary advises the applicable
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Trustee in writing that the Depositary is no longer willing or able to
discharge properly its responsibilities as depositary with respect to such Debt
Securities and it is unable to locate a qualified successor, (b) the Company,
at its option, elects to terminate the book-entry system or (c) after the
occurrence of an Event of Default with respect to such Debt Securities, a
Holder of Debt Securities advises the applicable Trustee in writing that it
wishes to receive a Definitive Security.
Upon the occurrence of any event described in the immediately preceding
paragraph, the applicable Trustee will be required to notify all applicable
holders through the Depositary and its participants of the availability of
Definitive Securities. Upon surrender by the Depositary of the definitive
certificates representing the corresponding Debt Securities and receipt of
instructions for re-registration, such Trustee will reissue such Debt
Securities as Definitive Securities to such holders.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or nominee will be
considered the sole owner or holder of the Securities represented by such
Global Security for all purposes under the applicable Indenture. Unless
otherwise specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in certificated form and will not be considered
the holders thereof for any purposes under the applicable Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under such Indenture. The
Company understands that under existing industry practices, if the Company
requests any action of holders or an owner of a beneficial interest in such
Global Security desires to give any notice or take any action a holder is
entitled to give or take under the applicable Indenture, the Depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such participants
to give such notice or take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
Regarding the Trustees
The Indentures contains certain limitations on the right of the Trustees,
should any Trustee become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize for its own account on certain property
received in respect of any such claim as security or otherwise. The Trustees
will be permitted to engage in certain other transactions; however, if any
Trustee acquires any conflicting interest and there is a default under the Debt
Securities, it must eliminate such conflict or resign.
Either Trustee may resign or be removed with respect to one or more series
of Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. In the event that two or more persons are acting as
Trustee with respect to different series of Indenture Securities, each such
Trustee shall be a Trustee of a trust under the applicable Indenture separate
and apart from the trust administered by any other such Trustee, and any action
described herein to be taken by the "Trustee" may then be taken by each such
Trustee with respect to, and only with respect to, the one or more series of
Indenture Securities for which it is Trustee.
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of 40,000,000 Common
Shares, par value $.001 per share, and 2,000,000 Preferred Shares, par value
$.001 per share. On September 30, 1997, there were outstanding (a) 10,826,972
Common Shares, (b) stock options to purchase an aggregate of 1,880,292 Common
Shares (of which options to purchase an aggregate of 798,145 Common Shares
were currently exercisable), (c) convertible subordinated debentures entitling
the holders thereof to purchase an aggregate of 4,671,875 Common Shares, (d)
convertible subordinated notes entitling the holders thereof to purchase an
aggregate of 555,555 Common Shares and (e) warrants to purchase an aggregate
of 841,102 Common Shares. No Preferred Shares had been issued as of such date.
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DESCRIPTION OF COMMON SHARES
Under the Certificate of Incorporation, the Company is currently
authorized to issue up to 40,000,000 of its Common Shares. The Prospectus
Supplement relating to an offering of Common Shares will describe terms
relevant thereto, including the number of shares offered, any initial offering
price, and market price and dividend information.
The following description of the Common Shares of the Company is a summary
of certain provisions of the Company's Certificate of Incorporation and
By-laws.
Subject to the rights of the holders of any outstanding Preferred Shares,
holders of Common Shares are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. See
also "Description of Preferred Shares - Dividend Rights".
Holders of the Common Shares are entitled to one vote for each share held
of record by them on all matters voted upon by the shareholders of the Company,
including the election of directors. The Common Shares do not have cumulative
voting rights. Election of directors is decided by the holders of a plurality
of the shares entitled to vote and present in person or by proxy at a meeting
for the election of directors. See "Description of Preferred Shares - Voting
Rights" for a discussion of the voting rights of any Preferred Shares that
might be issued in the future.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, after the payment or provision for payment of the
debts and other liabilities of the Company and the preferential amounts to
which holders of the Company's Preferred Shares are entitled (if any Preferred
Shares are then outstanding), the holders of Common Shares are entitled to
share ratably in the remaining assets of the Company.
The outstanding Common Shares are, and any Common Shares offered hereby
upon issuance and payment therefor will be, fully paid and non-assessable. The
Common Shares have no preemptive or conversion rights and there are no
redemption or sinking fund provisions applicable thereto.
The Common Shares of the Company are listed on The New York Stock Exchange
under the symbol "CMI". The transfer agent and registrar is Continental Stock
Transfer & Trust Company.
Steven Rabinovici, David Jacaruso, Marie Graziosi, Dennis Shields and Dr.
Lawrence Shields, founders of the Company, are parties to a June 1995
Shareholders' Agreement pursuant to which they have agreed to vote (and
subsequently voted) all of their shares of the Company, for a period of ten
years, in favor of election to the Board of Directors of the Company and for
such other or additional nominees as may be designated from time to time and
approved by the Board and to vote on all other matters in accordance with the
recommendations of the Board. Mr. Rabinovici is the Chairman of the Board and
Chief Executive Officer of the Company, Mr. Jacaruso is the former Vice
Chairman of the Board and former President of the Company and Dennis Shields,
the son of Dr. Shields, is a former Executive Vice President and a former
director of the Company. Marie Graziosi is the wife of David Jacaruso. Dr.
Shields is a founder of CMI, the Company's second largest shareholder and the
founder and a 95% shareholder of GMMS. At September 30, 1997, Messrs.
Rabinovici, Jacaruso, Shields, Ms. Graziosi and Dr. Lawrence Shields
beneficially owned an aggregate of approximately 2,265,081 shares or 20.9% of
the Company's outstanding Common Shares.
DESCRIPTION OF PREFERRED SHARES
General
The following summary does not purport to be complete and is subject in
all respects to applicable New York law and the Company's Certificate of
Incorporation.
The Company is authorized by its Certificate of Incorporation to issue
2,000,000 Preferred Shares. The Board of Directors is authorized to designate
with respect to each new series of Preferred Shares the number of shares in
each series, the dividend rates and dates of payment, voluntary and involuntary
liquidation preferences, redemption prices, whether or not dividend, shall be
cumulative and, if cumulative, the date or dates from which the same shall be
cumulative, the sinking fund provisions, if any, for redemption or purchase of
shares, the
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rights, if any, and the terms and conditions on which shares can be converted
into or exchanged for, or the rights to purchase, shares of any other class or
series, and the voting rights, if any. Any Preferred Shares issued will rank
prior to the Common Shares as to dividends and as to distributions in the event
of liquidation, dissolution or winding up of the Company. The ability of the
Board of Directors to issue Preferred Shares, while providing flexibility in
connection with possible acquisitions and other corporate purposes, could,
among other things, adversely affect the voting powers of holders of Common
Shares and, under certain circumstances, may discourage an attempt by others to
gain control of the Company. The Company may amend from time to time its
Certificate of Incorporation to increase the number of authorized Preferred
Shares. Any such amendment would require the approval of the holders of a
majority of the outstanding Common Shares and the approval of the holders of a
majority of the outstanding shares of all series of Preferred Shares voting
together as a single class without regard to series. As of the date of this
Prospectus, the Company had no Preferred Shares outstanding.
The applicable Prospectus Supplement will describe the following terms of
the offered series of Preferred Shares: (a) title and stated value of such
series; (b) the number of shares in such series; (c) the dividend payment dates
and the dividend rate or method of determination or calculation of such terms
applicable to the series; (d) applicable redemption provisions, if any; (e)
sinking fund or purchase fund provisions, if any; (f) the fixed liquidation
price and fixed liquidation premium, if any, applicable to the series; (g) the
conversion rights, if any, and the rate or basis of exchange or conversion into
other securities or method of determination thereof applicable to the series,
if any; (h) whether interests in such series will be represented by Depositary
Shares; (i) applicable voting rights; and (j) any other terms applicable
thereto.
Redemption
A series of Preferred Shares may be redeemable, in whole or in part, at
the option of the Company, and may be subject to mandatory redemption, in each
case upon terms, at the times and at the redemption prices set forth in the
Prospectus Supplement relating to such series.
The applicable Prospectus Supplement for any series of Preferred Shares
that is subject to mandatory redemption will specify the number of shares of
such series of Preferred Shares that shall be redeemed by the Company on the
date or dates to be specified, at a redemption price per share to be specified,
together with an amount equal to any accrued and unpaid dividends thereon to
the date of redemption.
If fewer than all the outstanding shares of any series of Preferred Shares
are to be redeemed, whether by mandatory or optional redemption, the selection
of the shares to be redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors or a duly authorized committee thereof, or
by any other method which may be determined by the Board of Directors or such
committee to be equitable. From and after the date of redemption (unless
default shall be made by the Company in providing for the payment of the
redemption price), dividends shall cease to accrue on the Preferred Shares
called for redemption and all rights of the holders thereof (except the right
to receive the redemption price) shall cease.
Conversion Rights; Preemptive Rights
The applicable Prospectus Supplement for any series of Preferred Shares
will state the terms, if any, on which shares of that series are convertible
into Common Shares or another series of preferred shares of the Company. The
Preferred Shares will have no preemptive rights.
Dividend Rights
The holders of the Preferred Shares of each series shall be entitled to
receive, if and when declared payable by the Board of Directors, out of assets
available therefor, dividends at, but not exceeding, the dividend rate for such
series (which may be fixed or variable), payable at such intervals and on such
dates as are provided in the resolution of the Board of Directors creating such
series. If such intervals and dividend payment dates shall vary from time to
time for such series, such resolution shall set forth the method by which such
intervals and such dates shall be determined. Such dividends on Preferred
Shares shall be paid before any dividends, other
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than a dividend payable in Common Shares of the Company, may be paid upon or
set apart for any shares of capital stock ranking junior to the Preferred
Shares in respect of dividends or liquidation rights (referred to in this
Prospectus as "stock ranking junior to the Preferred Shares").
Voting Rights
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Shares, or except as expressly required by the
laws of the State of New York or other applicable law, the holders of the
Preferred Shares will not be entitled to vote. Except as indicated in the
Prospectus Supplement relating to a particular series of Preferred Shares, each
such share will be entitled to one vote on matters on which holders of such
series of Preferred Shares are entitled to vote. However, as more fully
described below under "Depositary Shares," if the Company elects to issue
Depositary Shares representing a fraction of a share of a series of Preferred
Shares, each such Depositary Share will, in effect, be entitled to such
fraction of a vote, rather than a full vote. Since each full share of any
series of Preferred Shares shall be entitled to one vote, the voting power of
such series, on matters on which holders of such series and holders of other
series of preferred shares are entitled to vote as a single class, shall depend
on the number of shares in such series, not the aggregate liquidation
preference or initial offering price of the shares of such series of Preferred
Shares.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the Company,
the holders of Preferred Shares shall be entitled to receive, for each share
thereof, the fixed liquidation or stated value for the respective series
together in all cases dividends accrued or in arrears thereon, before any
distribution of the assets shall be made to the holders of any stock ranking
junior to the Preferred Shares. If the assets distributable among the holders
of Preferred Shares should be insufficient to permit the payment of the full
preferential amounts fixed for all series, then the distribution shall be made
among the holders of each series ratably in proportion to the full preferential
amounts to which they are respectively entitled.
Miscellaneous
The Preferred Shares upon issuance and the receipt of full consideration
will be fully paid and nonassessable.
DESCRIPTION OF DEPOSITARY SHARES
General
The Company may, at its option, elect to offer fractional Preferred
Shares, rather than whole Preferred Shares. In the event such option is
exercised, the Company will issue to the public receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Shares) of a share of a
particular series of Preferred Shares as described below.
The shares of any series of Preferred Shares represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary Bank"). Subject to the terms
of the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a Preferred Share represented by such
Depositary Share, to all the rights and preferences of the Preferred Shares
represented thereby (including dividend, voting, redemption and liquidation
rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing fractional Preferred Shares in
accordance with the terms of the offering. If Depositary Shares are issued,
copies of the forms of Deposit Agreement and Depositary Receipt will be
incorporated by reference in the Registration Statement of which this
Prospectus is a part, and the following summary is qualified in its entirety by
reference to such documents.
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Pending the preparation of definitive engraved Depositary Receipts, the
Depositary Bank may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will
be exchangeable for definitive Depositary Receipts at the Company's expense.
Withdrawal of Preferred Shares
Upon surrender of the Depositary Receipts to the Depositary Bank, the
owner of the Depositary Shares evidenced thereby is entitled to delivery at
such office of the number of whole Preferred Shares represented by such
Depositary Shares. If the Depositary Receipts delivered by the holder evidence
a number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole Preferred Shares to be withdrawn, the
Depositary Bank will deliver to such holder at the same time a new Depositary
Receipt evidencing such excess number of Depositary Shares. Owners of
Depositary Shares will be entitled to receive only whole Preferred Shares. In
no event will fractional Preferred Shares (or cash in lieu thereof) be
distributed by the Depositary Bank. Consequently, a holder of a Depositary
Receipt representing a fractional Preferred Share would be able to liquidate
his position only by a sale to a third party (in a public trading market
transaction or otherwise), unless the Depositary Shares are redeemed by the
Company or converted by the holder.
Dividends and Other Distributions
The Depositary Bank will distribute all cash dividends or other cash
distributions received in respect of the Preferred Shares to the record holders
of Depositary Shares relating to such Preferred Shares in proportion to the
number of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary Bank
will distribute property received by it to the record holders of Depositary
Shares entitled thereto, unless the Depositary Bank determines that it is not
feasible to make such distribution, in which case the Depositary Bank may, with
the approval of the Company, sell such property and distribute the net proceeds
from such sale to such holders.
Redemption of Depositary Shares
If a series of Preferred Shares represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary Bank resulting from the redemption, in whole or in
part, of such series of Preferred Shares held by the Depositary Bank. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share payable with respect to such series of
Preferred Shares. Whenever the Company redeems Preferred Shares held by the
Depositary Bank, the Depositary Bank will redeem as of the same redemption date
the number of Depositary Shares representing the Preferred Shares so redeemed.
If fewer than all the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be determined
by the Depositary Bank.
Voting the Preferred Shares
Upon receipt of notice of any meeting at which the holders of Preferred
Shares are entitled to vote, the Depositary Bank will mail the information
contained in such notice of meeting to the record holders of the Depositary
Shares relating to such Preferred Shares. Each record holder of such Depositary
Shares on the record date (which will be the same date as the record date for
the Preferred Shares) will be entitled to instruct the Depositary Bank as to
the exercise of the voting rights pertaining to the amount of Preferred Shares
represented by such holder's Depositary Shares. The Depositary Bank will
endeavor, insofar as practicable, to vote the amount of Preferred Shares
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all action which may be deemed necessary by the
Depositary Bank in order to enable the Depositary Bank to do so. The Depositary
Bank may abstain from voting Preferred Shares to the extent it does not receive
specific instructions from the holders of Depositary Shares representing such
Preferred Shares.
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Amendment and Termination of the Depositary Agreement
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary Bank. However, any amendment that
materially and adversely alters the rights of the holders of Depositary Shares
will not be effective unless such amendment has been approved by the holders of
at least a majority of the Depositary Shares then outstanding. The Deposit
Agreement may be terminated by the Company or the Depositary Bank only if (i)
all outstanding Depositary Shares have been redeemed or (ii) there has been a
final distribution in respect of the Preferred Shares in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of Depositary Receipts.
Charges of Depositary Bank
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary Bank in connection with the initial deposit
of the Preferred Shares and any redemption of the Preferred Shares. Holders of
Depositary Receipts will pay other transfer and other taxes and governmental
charges and such other charges, including a fee for the withdrawal of Preferred
Shares upon surrender of Depositary Receipts, as are expressly provided in the
Deposit Agreement to be for their accounts.
Miscellaneous
The Depositary Bank will forward to holders of Depository Receipts all
reports and communications from the Company that are delivered to the
Depositary Bank and that the Company is required to furnish to the holders of
Preferred Shares.
Neither the Depositary Bank nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Depositary Bank under the Deposit Agreement will be limited to
performance in good faith of their duties thereunder and they will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or Preferred Shares unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or upon
information provided by persons presenting Preferred Shares for deposit,
holders of Depositary Receipts or other persons believed to be competent and on
documents believed to be genuine.
Resignation and Removal of Depositary Bank
The Depositary Bank may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove the
Depositary Bank, any such resignation or removal to take effect upon the
appointment of a successor Depositary Bank and its acceptance of such
appointment. Such successor Depositary Bank must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
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PLAN OF DISTRIBUTION
The Company may sell Offered Securities to one or more underwriters or
dealers for public offering and sale by them or may sell Offered Securities
directly to other purchasers, or through agents. The Prospectus Supplement with
respect to any Offered Securities will set forth the terms of the Offered
Securities, including the name or names of any underwriters, dealers or agents,
the price of the Offered Securities and the net proceeds to the Company from
such sale, any underwriting discounts and commissions or other items
constituting underwriters' compensation, any discounts or concessions allowed
or reallowed or paid to dealers and any securities exchanges on which such
Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public price or at varying prices determined at the time of sale. The
underwriter or underwriters with respect to a particular underwritten offering
of Offered Securities will be named in the Prospectus Supplement relating to
such offering, and if an underwriting syndicate is used, the managing
underwriter or underwriters will be set forth on the cover of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters or agents to purchase the Offered Securities
will be subject to certain conditions precedent and the underwriters will be
obligated to purchase all the Offered Securities if any are purchased. Any
public offering price and any discounts and commissions or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
If a dealer is utilized in the sale of any Offered Securities in respect
of which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealer, as principal. The dealer may then resell such Offered
Securities to the public at varying prices to be determined by such dealer at
the time of resale. The name of the dealer and the terms of the transaction
will be set forth in the Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company to one or more
institutional purchasers, or through agents designated by the Company from time
to time, at a fixed price, or prices, which may be changed, or at varying
prices determined at the time of sale. Any agent involved in the offer or sale
of the Offered Securities will be named, and any concessions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters, agents and dealers participating in
the distribution of the Offered Securities may be deemed to be underwriters,
and any discounts or commissions received by them from the Company and any
profit on the resale of the Offered Securities by them may be deemed to be
underwriting discounts or commissions under the Securities Act.
Except for Common Shares, each series of Offered Securities will be a new
issue with no established trading market. Any underwriters to whom such Offered
Securities are sold by the Company for public offering and sale may make a
market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any
Offered Securities.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including under the Securities Act, or to contribution with
respect to payments that such agents, dealers, or underwriters may be required
to make with respect thereto. Underwriters, dealers, or agents and their
associates may be customers of, engage in transactions with and perform
services for, the Company in the ordinary course of business.
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LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Morse, Zelnick, Rose & Lander, LLP New York, New York and for any
underwriters, dealers or agents by Shearman & Sterling, New York, New York.
Members of the firm Morse, Zelnick, Rose & Lander, LLP beneficially own an
aggregate of 83,094 Common Shares of the Company.
EXPERTS
The audited financial statements incorporated by reference in this
Prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP and J. H. Cohn LLP, independent public accountants, as
indicated in their reports with respect thereto, which are incorporated by
reference herein, and are included herein in reliance upon the authority of
said firms as experts in accounting and auditing in giving said reports.
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==============================================================================
No dealer, salesperson or any other person has been authorized to give
any information or to make any representations other than those contained in
this Prospectus in connection with the offer made by this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or the solicitation of an offer to buy any of the securities
offered by this Prospectus, nor does it constitute an offer to sell or a
solicitation to buy any of the Offered Securities to any person or by anyone in
any jurisdiction in which such offer or solicitation is not authorized, or in
which the person making such offer or solicitation is not qualified to do so,
or to any person to whom it is unlawful to make such offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that information contained
herein is current as of anytime subsequent to the date hereof.
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TABLE OF CONTENTS
Page
-----
Prospectus
Available Information ........................ 2
Incorporation of Certain Documents by
Reference ................................. 2
The Company .................................... 3
Risk Factors ................................. 3
Ratio of Earnings to Fixed Charges ............ 10
Use of Proceeds .............................. 10
Management .................................... 11
Description of Debt Securities ............... 14
Description of Outstanding Capital Stock ...... 24
Description of Common Shares .................. 25
Description of Preferred Shares ............... 25
Description of Depositary Shares ............... 27
Plan of Distribution ........................... 30
Legal Matters ................................. 31
Experts ....................................... 31
================================================================================
<PAGE>
================================================================================
$200,000,000
Complete Management, Inc.
Securities
-----------
PROSPECTUS
-----------
November , 1997
==============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following are the expenses of the issuance and distribution of the
securities being registered, other than underwriting commissions and expenses,
all of which will be paid by the Company. Other than the SEC registration fee
and the NASD filing fee, all of such expenses are estimated.
<TABLE>
<S> <C>
SEC registration fee ................................................ $ 60,607
NASD filing fee ................................................... $ 20,500
Printing and engraving expenses .................................... $ 250,000
Accounting fees and expenses ....................................... $ 450,000
Legal fees and expenses ............................................. $ 500,000
Fees and expenses of trustees/and Preferred Shares depositary ...... $ 10,000
Blue Sky fees and expenses .......................................... $ 10,000
Miscellaneous expenses ............................................. $ 48,893
-----------
Total ............................................................ $1,350,000
===========
</TABLE>
Item 15. Indemnification of Directors and Officers
Sections 722 and 723 of the New York Business Corporation Law grant to the
Company the power to indemnify the officers and directors of the Company as
follows:
(a) A corporation may indemnify any person made, or threatened to be made,
a party to an action or proceeding other than one by or in the right of the
corporation to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type of
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the
corporation served in any capacity at the request of the corporation, by reason
of the fact that he, his testator or intestate, was a director or officer of
the corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests
of the corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful.
(b) The termination of any such civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption that any such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation or that he had reasonable
cause to believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened to be made,
a party to an action by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a director or officer of the corporation, or is or was serving at the
request of the corporation as a director or officer of any other corporation of
any type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, against amounts paid in
settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred by him in connection with the defense or settlement of
such action, or in connection with an appeal therein if such director or
officer acted, in good faith, for a purpose which he reasonably believed to be
in, or, in the case of service for any other corporation or any
II-1
<PAGE>
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interest of the corporation, except that no
indemnification under this paragraph shall be made in respect of (1) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (2) any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation, unless and only to the extent that
the court on which the action was brought, or, if no action was brought, any
court of competent jurisdiction, determines upon application that, in view of
all the circumstances of the case, the person is fairly and reasonably entitled
to indemnity for such portion of the settlement amount and expenses as the
court deems proper.
(d) For the purpose of this section, a corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law shall be considered fines; and
action taken or omitted by a person with respect to an employee benefit plan in
the performance of such person's duties for a purpose reasonably believed by
such person to be in the interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
Payment of indemnification other than by court award is as follows:
(a) A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in section 722 shall be entitled to indemnification as authorized in such
section.
(b) Except as provided in paragraph (a), any indemnification under section
722 or otherwise permitted by section 721, unless ordered by a court under
section 724 (Indemnification of directors and officers by a court), shall be
made by the corporation, only if authorized in the specific case:
(1) By the board acting by a quorum consisting of directors who are not
parties to such action or proceeding upon a finding that the director or
officer has met the standard of conduct set forth in section 722 or established
pursuant to section 721, as the case may be, or,
(2) If a quorum under subparagraph (1) is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs:
(A) By the board upon the opinion in writing of independent legal counsel
that indemnification is proper in the circumstances because the applicable
standard of conduct set forth in such sections has been met by such director or
officer, or
(B) By the shareholders upon a finding that the director or officer has
met the applicable standard of conduct set forth in such sections.
(C) Expenses incurred in defending a civil or criminal action or
proceeding may be paid by the corporation in advance of the final disposition
of such action or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amounts as, and to the extent, required
by paragraph (a) of section 725.
The Company's certificate of incorporation provides as follows:
SIXTH: The personal liability of directors to the corporation or its
shareholders for damages for any breach of duty in such capacity is hereby
eliminated except that such personal liability shall not be eliminated if a
judgment or other final adjudication adverse to such director establishes that
his acts or omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he personally gained in fact a financial
profit or other advantage to which he was not legally entitled or that his acts
violated Section 719 of the Business Corporation Law.
* * *
EIGHTH: (a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer,
of the Corporation or is or was serving at the request of the
II-2
<PAGE>
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Business Corporation Law, as the same exists
or may hereafter be amended (but, in case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorney's fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith and such indemnification shall continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, except as provided in paragraph (b) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Business Corporation Law requires,
the payment of such expenses incurred by a director or officer (in his or her
capacity as a director or officer and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Business Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Business Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard or
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the Business Corporation Law.
The Underwriting Agreement provides for reciprocal indemnification between
the Company and its controlling persons, on the one hand, and the Underwriters
and their respective controlling persons, on the other hand, against certain
liabilities in connection with this offering, including liabilities under the
Securities Act of 1933, as amended.
II-3
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------- --------------------------------------------------------------------------------------------------
<S> <C>
1.1 Proposed form of underwriting agreement for Debt Securities (to be filed by Form 8-K)
1.2 Proposed form of underwriting agreement for Common Shares, Preferred Shares and Depositary
Shares (to be filed by Form 8-K)
4.1* Form of Senior Indenture between the Registrant and The Chase Manhattan Bank
4.2* Form of Subordinated Indenture between the Registrant and The Chase Manhattan Bank
4.3 Form or forms of Debt Securities with respect to each particular series of Debt Securities
registered hereunder (to be filed by Form 8-K)
4.4 Form of Deposit Agreement (to be filed by Form 8-K)
4.5 Form of Deposit Receipt (to be filed by Form 8-K)
5.1* Opinion of Morse, Zelnick, Rose & Lander, LLP
12* Computation of ratio of earning before fixed charges to fixed charges
23.1* Consent of Arthur Andersen LLP
23.2* Consent of J.H. Cohn LLP
23.3* Consent of Morse, Zelnick, Rose & Lander, LLP (included in Exhibit 5.1)
24+ Power of attorney (included in signature page)
25* Statement of Eligibility of The Chase Manhattan Bank under the Trust Indenture Act of 1939
on Form T-1
</TABLE>
- ------------
* Filed herewith.
+ Previously filed.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration agreement:
(i) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such
II-4
<PAGE>
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of the issue.
(e) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(f) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(g) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in New York, New York on
the 14th day of November, 1997.
COMPLETE MANAGEMENT, INC.
by: /s/ Steven M. Rabinovici
-------------------------------------
Chairman of the Board,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated on November 14, 1997.
<TABLE>
<CAPTION>
Signature Title
- --------------------------------------- --------------------------------------------------
<S> <C>
/s/ Steven M. Rabinovici Chairman of the Board and Chief Executive Officer
------------------------------------
Steven M. Rabinovici
* Chief Financial Officer and Direcor
------------------------------------
Arthur L. Goldberg
* Director
------------------------------------
Steven Cohn
/s/ Steven Hirsh Director
------------------------------------
Steven Hirsh
* Director
------------------------------------
Joseph S. Tocci
*By: /s/ Steven M. Rabinovici
------------------------------------
Steven M. Rabinovici,
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------- --------------------------------------------------------------------------------------------------
<S> <C>
1.1 Proposed form of underwriting agreement for Debt Securities (to be filed by Form 8-K)
1.2 Proposed form of underwriting agreement for Common Shares, Preferred Shares and Depositary
Shares (to be filed by Form 8-K)
4.1* Form of Senior Indenture between the Registrant and The Chase Manhattan Bank
4.2* Form of Subordinated Indenture between the Registrant and The Chase Manhattan Bank
4.3 Form or forms of Debt Securities with respect to each particular series of Debt Securities
registered hereunder (to be filed by Form 8-K)
4.4 Form of Deposit Agreement (to be filed by Form 8-K)
4.5 Form of Deposit Receipt (to be filed by Form 8-K)
5.1* Opinion of Morse, Zelnick, Rose & Lander, LLP
12* Computation of ratio of earning before fixed charges to fixed charges
23.1* Consent of Arthur Andersen LLP
23.2* Consent of J.H. Cohn LLP
23.3* Consent of Morse, Zelnick, Rose & Lander, LLP (included in Exhibit 5.1)
24+ Power of attorney (included in signature page)
25* Statement of Eligibility of The Chase Manhattan Bank under the Trust Indenture Act of 1939 on
Form T-1
</TABLE>
- ------------
* Filed herewith.
+ Previously filed.
<PAGE>
S&S Draft
11/13/97
- --------------------------------------------------------------------------------
COMPLETE MANAGEMENT, INC.
TO
THE CHASE MANHATTAN BANK,
Trustee
---------------
Senior Indenture
Dated as of November __, 1997
---------------
- --------------------------------------------------------------------------------
<PAGE>
COMPLETE MANAGEMENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of September___, 1997
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C> <C>
ss. 310(a)(1) .............................................................. 607(a)
(a)(2) .............................................................. 607(a)
(b) .............................................................. 607(b), 608
ss. 312(c) .............................................................. 701
ss. 314(a) .............................................................. 703
(a)(4) .............................................................. 1004
(c)(1) .............................................................. 102
(c)(2) .............................................................. 102
(e) .............................................................. 102
ss. 315(b) .............................................................. 601
ss. 316(a)(last
sentence) .............................................................. 101 ("Outstanding")
(a)(1)(A) .............................................................. 502, 512
(a)(1)(B) .............................................................. 513
(b) .............................................................. 508
(c) .............................................................. 104(e)
ss. 317(a)(1) .............................................................. 503
(a)(2) .............................................................. 504
(b) .............................................................. 1003
ss. 318(a) .............................................................. 111
</TABLE>
- --------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES......................................................................................................... 1
RECITALS OF THE COMPANY......................................................................................... 1
</TABLE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<CAPTION>
<S> <C>
SECTION 101. Definitions..................................................................1
Act .......................................................................................2
Affiliate..................................................................................2
Authenticating Agent.......................................................................2
Authorized Newspaper.......................................................................2
Bankruptcy Law.............................................................................2
Bearer Security............................................................................2
Board of Directors.........................................................................3
Board Resolution...........................................................................3
Business Day...............................................................................3
Capital Stock..............................................................................3
Capitalized Lease Obligation...............................................................3
Cedel......................................................................................3
Closing Date...............................................................................3
Commission.................................................................................3
Common Depositary..........................................................................3
Company....................................................................................3
Company Request............................................................................3
Consolidated Net Worth.....................................................................4
Corporate Trust Office.....................................................................4
corporation................................................................................4
coupon.....................................................................................4
Debt.......................................................................................4
Default....................................................................................5
Defaulted Interest.........................................................................5
Disqualified Stock.........................................................................5
</TABLE>
- --------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
ii
<TABLE>
<CAPTION>
Page
<S> <C>
Dollar or $................................................................................5
Euroclear..................................................................................5
Event of Default...........................................................................5
Exchange Act...............................................................................5
Exchange Date..............................................................................5
Generally Accepted Accounting Principles or GAAP...........................................5
Hedging Obligations........................................................................5
Holder.....................................................................................6
Indenture..................................................................................6
Indexed Security...........................................................................6
interest...................................................................................6
Interest Payment Date......................................................................6
Lien.......................................................................................6
Maturity...................................................................................6
Officers' Certificate......................................................................7
Opinion of Counsel.........................................................................7
Original Issue Discount Security...........................................................7
Outstanding................................................................................7
Paying Agent...............................................................................8
Person.....................................................................................8
Place of Payment...........................................................................8
Predecessor Security.......................................................................8
Redemption Date............................................................................9
Redemption Price...........................................................................9
Registered Security........................................................................9
Regular Record Date........................................................................9
Repayment Date.............................................................................9
Repayment Price............................................................................9
Responsible Officer........................................................................9
Restricted Securities......................................................................9
Restricted Subsidiary......................................................................9
Securities............................................................................... 10
Security Register and Security Registrar................................................. 10
Significant Subsidiary................................................................... 11
Special Record Date...................................................................... 11
Stated Maturity.......................................................................... 11
Subsidiary............................................................................... 11
Trust Indenture Act or TIA............................................................... 11
Trustee.................................................................................. 11
United States............................................................................ 12
</TABLE>
<PAGE>
iii
<TABLE>
<CAPTION>
Page
<S> <C>
United States person..................................................................... 12
Unrestricted Subsidiary.................................................................. 12
U.S. Government Obligations.............................................................. 12
Vice President........................................................................... 12
Voting Stock............................................................................. 12
Yield to Maturity........................................................................ 12
SECTION 102. Compliance Certificates and Opinions................................ 13
SECTION 103. Form of Documents Delivered to Trustee.............................. 13
SECTION 104. Acts of Holders..................................................... 14
SECTION 105. Notices, etc. to Trustee and Company................................ 16
SECTION 106. Notice to Holders; Waiver........................................... 16
SECTION 107. Effect of Headings and Table of Contents............................ 18
SECTION 108. Successors and Assigns.............................................. 18
SECTION 109. Separability Clause................................................. 18
SECTION 110. Benefits of Indenture............................................... 18
SECTION 111. Governing Law....................................................... 18
SECTION 112. Legal Holidays...................................................... 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..................................................... 19
SECTION 202. Form of Trustee's Certificate of Authentication..................... 20
SECTION 203. Securities Issuable in Global Form.................................. 20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................ 21
SECTION 302. Denominations....................................................... 25
SECTION 303. Execution, Authentication, Delivery and Dating...................... 25
SECTION 304. Temporary Securities................................................ 28
SECTION 305. Registration, Registration of Transfer and Exchange................. 31
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.................... 35
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.................................................. 36
SECTION 308. Optional Extension of Stated Maturity............................... 39
SECTION 309. Persons Deemed Owners............................................... 40
</TABLE>
<PAGE>
iv
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 310. Cancellation........................................................ 41
SECTION 311. Computation of Interest............................................. 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................. 41
SECTION 402. Application of Trust Money.......................................... 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................................... 43
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................. 45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................... 46
SECTION 504. Trustee May File Proofs of Claim.................................... 47
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities...................................................... 48
SECTION 506. Application of Money Collected...................................... 48
SECTION 507. Limitation on Suits................................................. 49
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................ 50
SECTION 509. Restoration of Rights and Remedies.................................. 50
SECTION 510. Rights and Remedies Cumulative...................................... 50
SECTION 511. Delay or Omission Not Waiver........................................ 50
SECTION 512. Control by Holders.................................................. 51
SECTION 513. Waiver of Past Defaults............................................. 51
SECTION 514. Waiver of Stay or Extension Laws.................................... 52
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.................................................. 52
SECTION 602. Certain Rights of Trustee........................................... 52
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities...................................................... 54
</TABLE>
<PAGE>
v
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 604. May Hold Securities................................................. 54
SECTION 605. Money Held in Trust................................................. 54
SECTION 606. Compensation and Reimbursement...................................... 55
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests....................................................... 56
SECTION 608. Resignation and Removal; Appointment of Successor................... 56
SECTION 609. Acceptance of Appointment by Successor.............................. 58
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business........................................................ 59
SECTION 611. Appointment of Authenticating Agent................................. 59
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........................ 61
SECTION 702. Reports by Trustee.................................................. 61
SECTION 703. Reports by Company.................................................. 62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms................ 63
SECTION 802. Successor Person Substituted........................................ 64
SECTION 803. Securities to Be Secured in Certain Events.......................... 64
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................. 65
SECTION 902. Supplemental Indentures with Consent of Holders..................... 66
SECTION 903. Execution of Supplemental Indentures................................ 68
SECTION 904. Effect of Supplemental Indentures................................... 68
SECTION 905. Conformity with Trust Indenture Act................................. 68
SECTION 906. Reference in Securities to Supplemental Indentures.................. 68
SECTION 907. Notice of Supplemental Indentures................................... 68
ARTICLE TEN
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COVENANTS
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SECTION 1001. Payment of Principal, Premium, if Any, and Interest................. 69
SECTION 1002. Maintenance of Office or Agency..................................... 69
SECTION 1003. Money for Securities Payments to Be Held in Trust................... 71
SECTION 1004. Statement as to Compliance.......................................... 72
SECTION 1005. Limitation on Investment Company Status............................. 72
SECTION 1006. Payment of Taxes and Other Claims................................... 73
SECTION 1007. Corporate Existence................................................. 73
SECTION 1008. Reports............................................................. 73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................................ 74
SECTION 1102. Election to Redeem; Notice to Trustee............................... 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................... 74
SECTION 1104. Notice of Redemption................................................ 75
SECTION 1105. Deposit of Redemption Price......................................... 76
SECTION 1106. Securities Payable on Redemption Date............................... 76
SECTION 1107. Securities Redeemed in Part......................................... 77
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article............................................ 78
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............... 78
SECTION 1203. Redemption of Securities for Sinking Fund........................... 79
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article............................................ 80
SECTION 1302. Repayment of Securities............................................. 80
SECTION 1303. Exercise of Option.................................................. 80
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable..................................................... 81
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SECTION 1305. Securities Repaid in Part........................................... 82
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................... 82
SECTION 1402. Defeasance and Discharge............................................ 82
SECTION 1403. Covenant Defeasance................................................. 83
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..................... 84
SECTION 1405. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions................ 86
SECTION 1406. Reinstatement....................................................... 86
SECTION 1407. Qualifying Trustee.................................................. 87
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called........................... 87
SECTION 1502. Call, Notice and Place of Meetings.................................. 87
SECTION 1503. Persons Entitled to Vote at Meetings................................ 88
SECTION 1504. Quorum; Action...................................................... 88
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings......................................... 89
SECTION 1506. Counting Votes and Recording Action of Meetings..................... 90
TESTIMONIUM......................................................................................................99
SIGNATURES AND SEALS.............................................................................................99
FORMS OF CERTIFICATION EXHIBIT A
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<PAGE>
INDENTURE, dated as of October__ 1997, between Complete
Management, Inc., a corporation duly organized and existing under the laws of
the State of New York (herein called the "Company"), having its principal
office at 254 West 31st Street, New York, New York 10001 and The Chase
Manhattan Bank, a New York banking corporation, Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured senior debentures, notes or other evidences of indebtedness (herein
called the "Securities"), which may be convertible into or exchangeable for
any securities of the Company, to be issued in one or more series and up to
such principal amount or amounts as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE 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;
<PAGE>
2
(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; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are
defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state or
foreign law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
"Bearer Security" means any Security except a Registered
Security.
<PAGE>
3
"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.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this Indenture or in
the Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by law or executive
order to close.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity interest (however
designated).
"Capitalized Lease Obligation" means, with respect to any
person, an obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with GAAP, has
been recorded as a capital lease.
"Cedel" means Cedel Bank, societe anonyme, or its successor.
"Closing Date" means, with respect to any Securities, the
date on which such Securities are originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this Indenture 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 Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture 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, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
<PAGE>
4
"Consolidated Net Worth" means, at any date of
determination, shareholders' equity of the Company and its Restricted
Subsidiaries as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries,
less any amounts attributable to Disqualified Stock or any equity security
convertible into or exchangeable for Debt, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item
to be determined in conformity with GAAP (excluding the effects of foreign
currency adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is
located at 450 West 33rd Street, New York, New York 10001- 2697.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or
services, (e) Capitalized Lease Obligations, (f) all Disqualified Stock of
such Person valued at its maximum fixed repurchase price, plus accrued and
unpaid dividends, (g) all obligations of such Person under or in respect of
Hedging Obligations and (h) every obligation of the type referred to in
clauses (a) through (g) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed. For purposes
of this definition, the "maximum fixed repurchase price" of any Disqualified
Stock that does not have a fixed repurchase price will be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were repurchased on any date on which Debt is required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by,
the fair market value of such Disqualified Stock, such fair market value will
be determined in good faith by the board of directors of the issuer of such
Disqualified Stock. Notwithstanding the foregoing, trade accounts payable and
accrued liabilities arising in the ordinary course of business and any
liability for federal, state or local taxes or other taxes owed by such Person
will not be considered Debt for purposes of this definition.
<PAGE>
5
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable in global form, the Person designated as Depositary by the
Company pursuant to Section 301 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms or by the terms of any security into which it
is convertible or exchangeable or by contract or otherwise (i) is or upon the
happening of any event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the relevant series of Securities, (ii)
is redeemable at the option of the holder thereof at any time prior to such
final Stated Maturity or (iii) at the option of the holder thereof, is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect from time to time.
"Hedging Obligations" means the obligations of any person
under (i) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such person against fluctuations in interest rates or the
value of foreign currencies.
<PAGE>
6
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of
Securities established as contemplated by Section 301; provided, however,
that, if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original issuance.
"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 at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any mortgage, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired. A Person will be deemed to own subject to a
Lien any property that such Person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.
"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
<PAGE>
7
therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder 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 and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; 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;
<PAGE>
8
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present
at a meeting of Holders for quorum purposes, (i) the principal amount of an
Original Issue Discount 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 amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed 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 (iii)
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 making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Paying Agent" means any Person (including the Company
acting as Paying Agent) authorized by the Company to pay the principal of (or
premium, if any) or interest, if any, on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"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 or
a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the
<PAGE>
9
Security to which the mutilated, destroyed, lost or stolen coupon appertains,
as the case may be.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any
Security to be repaid at the option of the Holder, the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Securities" has the meaning specified in any
"Limitation on Liens" covenant.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture;
<PAGE>
10
provided, however, that if at any time there is more than one Person acting as
Trustee under this Indenture, "Securities" with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first
recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Restricted Subsidiary of
the Company that together with its Subsidiaries, (a) for the most recent
fiscal year of the Company, accounted for more than 10% of the consolidated
net sales of the Company and its Restricted Subsidiaries or (b) as of the end
of such fiscal year, was the owner of more than 10% of the consolidated assets
of the Company and its Restricted Subsidiaries, in the case of either (a) or
(b), as set forth on the most recently available consolidated financial
statements of the Company for such fiscal year or (c) was organized or
acquired since the end of such fiscal year and would have been a Significant
Subsidiary if it had been owned during such fiscal year.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date
fixed by the Trustee 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 or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
"Subsidiary" means any person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the
Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
<PAGE>
11
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United States of
America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified
with respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary in
accordance with any "Unrestricted Subsidiaries" covenant and (b) any
Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
"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".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on
<PAGE>
12
such Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
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 an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition 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.
<PAGE>
13
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, 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.
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1506.
(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
<PAGE>
14
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 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 principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be
a date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such
<PAGE>
15
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months
after the record date.
(f) Except as provided in Section 104(g), 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.
(g) At any time prior to (but not after) the evidencing to
the Trustee, as provided in this Section, of the taking of any action by the
Holders of the requisite proportion of Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action, any
Holder of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Section, revoke such
action so far as concerns such Security.
SECTION 105. Notices, etc. to Trustee and Company.
------------------------------------
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents 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 Trustee Administration Department, 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 Indenture
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected
by such event, at his address as it appears in the Security Register,
<PAGE>
16
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
of Registered Securities 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 of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as herein provided. 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.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical
to mail notice of any event to Holders of Registered Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be sufficient giving of such notice for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and in such other
city or cities as may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of the
first such publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
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
<PAGE>
17
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.
SECTION 107. 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 108. 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 109. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security
or coupon 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 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
any Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
-------------
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the law of the State of New York.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption
Date, sinking fund payment date or 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 any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section), payment of principal (or
premium, if any) or interest, 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
<PAGE>
18
the same force and effect as if made on the Interest Payment Date or
Redemption Date or sinking fund payment date, or at the Stated Maturity or
Maturity; provided that no interest shall accrue on the payment so deferred
for the period from and after such Interest Payment Date, Redemption Date,
sinking fund payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the forms 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, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the forms of Securities or coupons of any 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 Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all
Securities shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
<PAGE>
19
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
----------------------------------
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby may from
time to time be increased or decreased to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 303
or Section 304 has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form if such
Security was never issued and sold by the
<PAGE>
20
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in
the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or Cedel, to the extent of
their interests therein.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth in, 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, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2), (16) and (17) below), if so provided, may be determined from time to time
by the Company with respect to unissued Securities of the series and set forth
in such Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
<PAGE>
21
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, 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 such interest shall
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, where any Registered
Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable and, if different than the location specified in Section
1002, the place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the events upon the
occurrence of which and the price or prices at which, such Securities
of the series may, pursuant to any optional or mandatory provision,
be redeemed or purchased, in whole or in part, at the option of the
Company, if the Company is to have that option, and any terms and
conditions relevant thereto;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, and
other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
<PAGE>
22
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(10) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that 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;
(12) if the principal amount of any Securities that will be
payable at the Maturity thereof will not be determinable as of any
date prior to such Maturity, the amount that will be deemed to be the
outstanding principal amount of such Securities;
(13) any provisions in modification of, in addition to or in
lieu of any of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in
Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities
<PAGE>
23
of the series may be exchanged for Registered Securities of such
series, and the circumstances under which and the place or places
where any such exchanges may be made and if Securities of the series
are to be issuable in global form, the identity of any initial
Depositary therefor;
(16) the applicability of, any deletions from, modifications
of or additions to the Events of Default of the Company with respect
to Securities of the series, whether or not such Events of Default
are consistent with the Events of Default set forth herein;
(17) the applicability of, any deletions from, modifications
of or additions to the covenants (including the addition of
provisions with respect to the waiver of certain covenants contained
in this Indenture) of the Company with respect to Securities of the
series, whether or not such covenants are consistent with the
covenants set forth herein;
(18) whether the Securities are to be secured;
(19) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent or any other person or entity
to act in connection with such Securities for or on behalf of the
holders thereof or the Company;
(20) the Person to whom any interest on any Registered
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, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(21) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(22) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
and
<PAGE>
24
(23) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. Not all Securities of any one series need
be issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall
be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms, or the manner of determining the terms,
of the series.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions, the Registered Securities of such series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, other than the
Bearer Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or a Vice
President, which Securities or coupons may, but need not, be attested by its
Secretary or an Assistant Secretary. The signature of any of these officers on
the Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons 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 or coupons.
<PAGE>
25
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupons appertaining thereto, 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 such Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original issuance of
such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest
rate, stated maturity, date of issuance and date from which interest shall
accrue.
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 TIA
Sections 315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms (or the manner of determining the terms)
of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
<PAGE>
26
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities, any coupons
and of the supplemental indentures, if any, have been complied with
and that authentication and delivery of such Securities and any
coupons and the execution and delivery of the supplemental indenture,
if any, by the Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons
will not contravene the articles of incorporation or by-laws of the
Company or result in any violation of any of the terms or provisions
of any law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
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 the preceding two
paragraphs prior to or at the time of issuance of each Security, but such
documents shall be delivered prior to or at the time of issuance of the first
Security of such series.
The Trustee shall not be required to authenticate and
deliver any 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 is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
No Security or coupon 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 duly executed by the Trustee by
<PAGE>
27
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. 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 310 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, 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.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or more
Registered Securities in global form, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Registered
Securities in global form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Securities of such
series specified in the terms of such series, (ii) shall be registered in the
name of the Depositary for such Registered Security or Securities in global
form or the nominee of such Depositary and (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 301 must, at
the time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
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, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), 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
<PAGE>
28
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 (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations;
provided, however, that, except as otherwise provided in Section 301(15), no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and provided further that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. 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.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and Cedel,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, unless otherwise specified
in such temporary global Security, upon such presentation by the Common
Depositary, such temporary global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel as to the portion of such temporary global Security held for
its account then to be exchanged, each in the form set forth in Exhibit A-2 to
this Indenture (or in such other form as may be established pursuant to
Section 301); and provided further that definitive Bearer Securities shall be
delivered in
<PAGE>
29
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or Cedel, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or Cedel, as the case may be,
a certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Cedel, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euroclear or Cedel. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and Cedel on such Interest Payment Date upon delivery by Euroclear
and Cedel to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euroclear or Cedel,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged
for definitive Securities of the same series and of like tenor on the Exchange
Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no
<PAGE>
30
payments of principal (or premium, if any) or interest, if any, owing with
respect to a beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and Cedel and not paid as herein provided shall be
returned to the Trustee immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance
with Section 1003.
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 for each series of Securities (the register
maintained in the Corporate Trust Office of the Trustee or in any other office
or agency of the Company in a Place of Payment with respect to a series of
Securities being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers
of Registered Securities. The Security Register shall be in written form or
any other form capable of being converted into written form within a
reasonable time. At all reasonable times, the Security Register shall be open
to inspection by the Trustee. The Trustee is hereby initially appointed as
security registrar (the "Security Registrar") for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided. In no event shall there be more than one Security Register for each
series.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee, one or
more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and
tenor, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be issued
in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of
<PAGE>
31
the same series of any authorized denomination and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if
the Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in a permitted exchange for
a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in
any event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged,
such permanent global
<PAGE>
32
Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each portion
of such permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those
selected for redemption; and provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary for any Registered Securities
of a series in global form notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Securities or if at any time the
Depositary for such Registered Securities shall no longer be eligible under
Section 303, the Company shall appoint a successor Depositary with respect to
such Registered Securities. If a successor Depositary for such Registered
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301 that such Registered Securities be
represented by one or more Registered Securities in global form shall no
longer be effective and the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in
any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Security or Securities representing such
Registered Securities in exchange for such Registered Security or Securities
in global form, such definitive Securities to be registered in such names and
in such authorized
<PAGE>
33
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in global form
shall no longer be represented by a Registered Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Registered Security or Securities representing such Registered
Securities, in exchange for such Registered Security or Securities in global
form, such definitive Securities to be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
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, 1107 or 1305
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 selection for redemption
of Securities of that series under Section 1103 or 1203 and ending at the
close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any
<PAGE>
34
Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
-------------------------------------
Securities.
- ----------
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee together with, in
proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or coupon 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 or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security for which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding
to the coupons, if any, appertaining to such mutilated, destroyed, lost or
stolen Security or to the Security to which such mutilated, destroyed, lost or
stolen coupon appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States.
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
<PAGE>
35
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 with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon 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 and their
coupons, if any, 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
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
-----------------------------------------------
Optional Interest Reset.
- -----------------------
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such 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 of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant
to Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account located in the United States
maintained by the payee, provided that appropriate instructions with respect
to any such account shall be delivered to the paying agent by the applicable
Regular Record Date or Special Record Date.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest, if any, may
be made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Cedel with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Cedel to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
<PAGE>
36
Any interest on any Registered Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date 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 and, if applicable, interest on such defaulted interest (to the
extent lawful) at the rate specified in the Securities of such series (such
defaulted interest and, if applicable, interest thereon herein collectively
called "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 Registered 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
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the
manner provided in Section 106, 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 given,
such Defaulted Interest shall be paid to the Persons in whose name
the Registered 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 Registered 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.
<PAGE>
37
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to an Optional Reset Date for such
Security, which such notice shall contain such information as may be required
by the Trustee to transmit the Reset Notice as hereinafter defined. Not later
than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in
the manner provided for in Section 106, to the Holder of any such Security a
notice (the "Reset Notice") indicating whether the Company has elected to
reset the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable), and if so (i) such new interest rate (or
such new spread or spread multiplier, if applicable) and (ii) the provisions,
if any, for redemption during the period from such Optional Reset Date to the
next Optional Reset Date or if there is no such next Optional Reset Date, to
the Stated Maturity Date of such Security (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior
to the Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) provided for in the Reset Notice and establish
an interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset Notice,
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or
such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to
elect repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount thereof plus
interest accrued to such Optional Reset Date. In order to obtain repayment on
an Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to such Optional Reset Date and except that, if the Holder
has tendered any Security for repayment
<PAGE>
38
pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender for repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. Optional Extension of Stated Maturity.
-------------------------------------
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such
Security (each an "Extension Period") up to but not beyond the date (the
"Final Maturity") set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to the Stated
Maturity of such Security in effect prior to the exercise of such option (the
"Original Stated Maturity"). If the Company exercises such option, the Trustee
shall transmit, in the manner provided for in Section 106, to the Holder of
such Security not later than 40 days prior to the Original Stated Maturity a
notice (the "Extension Notice") indicating (i) the election of the Company to
extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest
rate, if any, applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period. Upon the Trustee's
transmittal of the Extension Notice, the Stated Maturity of such Security
shall be extended automatically and, except as modified by the Extension
Notice and as described in the next paragraph, such Security will have the
same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on
the Original Stated Maturity once the Company has extended the
<PAGE>
39
Maturity thereof, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders, except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that, if the Holder
has tendered any Security for repayment pursuant to an Extension Notice, the
Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the tenth day before the Original Stated
Maturity.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered 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 Registered
Security is registered as the owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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 of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
<PAGE>
40
SECTION 310. Cancellation.
------------
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
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 cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with its customary procedures and certification
of their disposal delivered to the Company unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day
months.
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 any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when
<PAGE>
41
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption or
surrendered for repayment and maturing after the relevant
Redemption Date or Repayment Date, whose surrender has been
waived as provided in Section 1106 or Section 1304, as
applicable, and (iv) Securities and coupons of such series
for whose payment money has theretofore been deposited in
trust with the Trustee or any Paying Agent 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 and, in the case of (i) or
(ii) below, any coupons appertaining thereto 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) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, 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
<PAGE>
42
(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 as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606,
the obligations of the Trustee to any Authenticating Agent under Section 611
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 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for whose payment such
money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
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 (whatever the
reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest on any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
<PAGE>
43
(3) failure to perform or comply with the Indenture
provisions under Article Eight; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article
Twelve; or
(5) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture (other than a default
in the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than that series), 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 Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) (i) an event of default has occurred under any mortgage,
bond, indenture, loan agreement or other document evidencing an issue
of Debt of the Company or any Significant Subsidiary, which issue has
an aggregate outstanding principal amount of not less than $[___]
million, and such default has resulted in such Debt becoming, whether
by declaration or otherwise, due and payable prior to the date on
which it would otherwise become due and payable or (ii) a default in
any payment when due at final maturity of any such Debt; or
(7) failure by the Company or any of its Subsidiaries to pay
one or more final judgments, the uninsured portion of which exceeds
in the aggregate $[___] million, which judgment or judgments are not
paid, discharged or stayed for a period of 60 days; or
(8) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Subsidiary under any applicable
Bankruptcy Law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or
any Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 90 consecutive days; or
(9) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or
<PAGE>
44
insolvency proceedings against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any
applicable Bankruptcy Law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due; or
(10) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
----------------------------------------
Annulment.
- ---------
If an Event of Default other than as specified in Section
501(8) or 501(9) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable. If an
Event of Default described in Section 501(8) or Section 501(9) occurs and is
continuing, then the principal amount of all the Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect
to Securities of any series has been made or an ipso facto acceleration with
respect to Securities of all series has occurred as aforesaid and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, the Holders of a majority in
principal amount of the Outstanding Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration or such ipso facto acceleration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay,
(A) all overdue interest, if any, on all
Outstanding Securities of that series (or of all series, as
the case may be) and any related coupons,
(B) all unpaid principal of (and premium, if any,
on) any Outstanding Securities of that series (or of all
series, as the case may be)
<PAGE>
45
which has become due otherwise than by such declaration of
acceleration or acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) interest on overdue interest, if any, at the
rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration or 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.
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 installment of
interest on any Security and any related coupon 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,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, and interest on any overdue principal (and premium,
if any) and on any overdue interest, at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for
<PAGE>
46
the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) 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 (or of all series, as
the case may be) 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 the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable
<PAGE>
47
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
---------------------------------------------
of Securities.
- -------------
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons 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 and coupons 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 premium, if any) or interest, if any, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest, if any, on the
Securities and coupons in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
<PAGE>
48
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related
coupons 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 in the case of any Event of
Default described in clause (1), (2), (3), (4), (5), (6), (7) or (10)
of Section 501, or, in the case of any Event of Default described in
clause (8) or (9) of Section 501, the Holders of not less than 25% in
principal amount of all Outstanding Securities, shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority or more in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in
clause (1), (2), (3), (4), (5), (6), (7) or (10) of Section 501, or,
in the case of any Event of Default described in clause (8) or (9) of
Section 501, by the Holders of a majority or more in principal amount
of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4), (5), (6), (7) or (10) of
Section 501, or of Holders of all Securities in the case of any Event of
Default described in clause (8) or (9) of Section 501, or to obtain or to seek
to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all Holders of Securities of the same series,
in the case of any Event of Default described in clause (1), (2), (3), (4),
(5), (6), (7) or (10) of Section 501, or of Holders of all Securities in the
case of any Event of Default described in clause (8) or (9) of Section 501.
<PAGE>
49
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, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal of (and
premium, if any) and (subject to Section 307) interest, if any, on, such
Security or payment of the coupons appertaining thereto on the respective
Stated Maturities expressed in such Security or coupons (or, in the case of
redemption or repayment, on the Redemption Date or Repayment 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 of Securities and coupons 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.
------------------------------
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons 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.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to 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.
<PAGE>
50
SECTION 512. Control by Holders.
------------------
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that in each
case
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
-----------------------
Subject to Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default described in clause (1), (2), (3), (4), (5), (6), (7) or (10) of
Section 501 (or, in the case of a default described in clause (8) or (9) of
Section 501, the Holders of not less than a majority in principal amount of
all Outstanding Securities may waive any such past default), and its
consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any) or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
<PAGE>
51
SECTION 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in
the payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related coupons; and provided further that in the case of any Default of the
character specified in Section 501(5) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
<PAGE>
52
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the
<PAGE>
53
exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance
------------------------------------------------
of Securities.
- -------------
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof. The
Trustee shall not be charged with knowledge of a Default or an Event of
Default or of the identity of a Significant Subsidiary unless (i) a
Responsible Officer of the Trustee assigned to and working in its Corporate
Trustee Administration Department shall have actual knowledge thereof or (ii)
the Trustee shall have received notice thereof in accordance with Section 105
from the Company or a Holder of a Security.
SECTION 604. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
<PAGE>
54
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance
of such obligations of the Company, the Trustee shall have a claim prior to
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest, if any, on particular Securities or any coupons.
Without limiting any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(8) or (9), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the satisfaction
and discharge of this Indenture.
<PAGE>
55
SECTION 607. Corporate Trustee Required; Eligibility;
----------------------------------------
Conflicting Interests.
- ---------------------
There shall be at all times a Trustee hereunder which shall
be eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5) and
shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
---------------------------------------
Successor.
- ---------
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed
<PAGE>
56
or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to the Holders of Securities of such series in the manner provided for
in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall
<PAGE>
57
become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued
pursuant to this Indenture, the terms "Trustee," "Indenture" and "Securities"
shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such
<PAGE>
58
successor Trustee all rights, powers and trusts referred to in paragraph (a)
or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
-----------------------------------------------
to Business.
- -----------
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities. In case any of the Securities shall
not have been authenticated by such predecessor Trustee, any successor Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee (which in the case of an appointment of an Authenticating Agent
to authenticate Securities on original issue, may contain procedures for such
authentication acceptable to the Trustee), and a copy of such instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture
<PAGE>
59
to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 606.
<PAGE>
60
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------
as Authenticating Agent
By
------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Securities, in the
manner and to the extent provided in TIA Section 313(c), a brief report dated
as of such May 15 if required by TIA Section 313(a).
<PAGE>
61
A copy of each report required by Section 313 of the TIA to
be transmitted by the Trustee to the Holders of the Securities shall, at the
time of such transmission, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 703. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
<PAGE>
62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
----------------------------------------------
Terms.
- -----
The Company may not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, sell, assign, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any other Person (in one transaction or a series of related
transactions), unless each of the following conditions is satisfied:
(1) either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by sale, assignment, transfer, lease or other disposition
the properties and assets of the Company substantially as an entirety
(the "Surviving Entity") (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States,
any state thereof or the District of Columbia and (B) expressly
assumes, by a supplemental indenture in form satisfactory to the
Trustee, all of the Company's obligations under the Indenture and the
Securities;
(2) immediately after giving effect to such transaction and
treating any obligation of the Company or a Restricted Subsidiary in
connection with or as a result of such transaction as having been
incurred as of the time of such transaction, no Default or Event of
Default has occurred and is continuing;
(3) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Company (or of the
Surviving Entity if the Company is not the continuing obligor under
this Indenture) is equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction;
(4) if the covenants applicable to any series of Securities
includes a "Limitation on Debt" covenant, immediately after giving
effect to such transaction on a pro forma basis (on the assumption
that the transaction occurred at the beginning of the most recently
ended four full fiscal quarter period for which internal financial
statements are available) the Company (or the Surviving Entity if the
Company is not the continuing obligor under this Indenture) could
incur at least $1.00 of additional Debt (other than Permitted Debt
(as defined in or pursuant to the Board Resolution or supplemental
indenture creating such series)) pursuant to such "Limitation on
Debt" covenant;
<PAGE>
63
(5) if any of the property or assets of the Company or any
of its Restricted Subsidiaries would thereupon become subject to any
Lien, the provisions of any "Limitation on Liens" covenant applicable
to any series of Securities are complied with; and
(6) the Company delivers, or causes to be delivered, to the
Trustee, in form reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
SECTION 802. Successor Person Substituted.
----------------------------
Upon any consolidation or merger, or any conveyance, sale,
assignment, transfer, lease or other disposition of the properties and assets
of the Company substantially as an entirety to any Person in accordance with
Section 801, in which the Company is not the continuing obligor under the
Indenture the Surviving Entity will succeed to and be substituted for, and may
exercise every right of, the Company hereunder, and thereafter (except in the
case of a lease) the Company will be discharged from all its obligations and
covenants hereunder and under the Securities.
SECTION 803. Securities to Be Secured in Certain Events.
------------------------------------------
If, upon any such consolidation of the Company with or
merger of the Company into any other corporation, or upon any conveyance,
sale, assignment, transfer, lease or other disposition of the property and
assets of the Company substantially as an entirety to any other Person, any
property or assets of the Company would thereupon become subject to any Lien,
then unless such Lien could be created pursuant to the "Limitation on Liens"
covenant applicable to any series of Securities without equally and ratably
securing such Securities, the Company, prior to or simultaneously with such
consolidation, merger, conveyance, lease or transfer, will, as to such
Restricted Securities, secure the Securities Outstanding hereunder (together
with, if the Company shall so determine, any other Debt of the Company now
existing or hereafter created which is not subordinate in right of payment to
the Securities) equally and ratably with (or prior to) the Debt which upon
such consolidation, merger, conveyance, sale, assignment, transfer, lease or
other disposition is to become secured as to such Restricted Securities by
such Lien, or will cause such Securities to be so secured; provided that, for
the purpose of providing such equal and ratable security, the principal amount
of Original Issue Discount Securities and Indexed Securities shall mean that
amount which would at the time of making such effective provision be due and
payable pursuant to Section 502 and the terms of such Original Issue Discount
Securities and Indexed Securities upon a declaration of acceleration of the
Maturity thereof, and the extent of such equal and ratable security shall be
adjusted, to the extent permitted by law, as and when said
<PAGE>
64
amount changes over time pursuant to the terms of such Original Issue Discount
Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
------------------------------------------
Holders.
- -------
Without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no
<PAGE>
65
Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to secure the Securities pursuant to this Indenture;
or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 609(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities, to
cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising
under this Indenture; provided such action shall not adversely affect
the interests of the Holders of Securities of any series and any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority
in principal amount of all Outstanding Securities of any series, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such series of Securities or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security of such
series,
(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of
such series, or reduce the principal amount thereof (or premium, if
any) or the rate of interest, if any, thereon, or reduce
<PAGE>
66
the amount of the principal of an Original Issue Discount Security of
such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any Holder
of any Security of such series, or change any Place of Payment where
any Security of such series or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may
be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain
provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section
1504 for quorum or voting with respect to Securities of such series,
or
(3) modify any of the provisions of this Section or Section
513 hereof or any "Waiver of Certain Covenants" covenant contained
herein, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series
cannot be modified or waived without the consent of the Holder of
each Outstanding Security of such series.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, or which adds any
covenant or other provision solely for the benefit of one or more particular
series of Securities shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
<PAGE>
67
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. Reference in Securities to Supplemental
---------------------------------------
Indentures.
- ----------
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture, but failure by the Company
to give any such notice as aforesaid shall not affect the validity or
effectiveness of any such supplemental indenture.
<PAGE>
68
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
------------------------------------------
Interest.
- --------
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any) and interest, if
any, on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series
of Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
If the Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange, where Securities
of that series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency
where any Registered Securities of that series may be presented or surrendered
for payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable,
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for payment in
the circumstances described in the second following paragraph (and not
otherwise) (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States,
an office or agency where Securities of that series and related coupons may be
presented and surrendered for payment; provided, however, that, if the
Securities of that series are listed on any stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in any required city
located outside the United States so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a
<PAGE>
69
Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are convertible
and exchangeable may be surrendered for conversion or exchange, as applicable
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that payment of principal of (and premium, if any) and
interest, if any, on any Bearer Security shall be made at the office of the
Company's Paying Agent in The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest, as the case
may be, at all offices or agencies outside the United States maintained for
such purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such
city and as its agent to receive all such presentations, surrenders, notices
and demands.
<PAGE>
70
SECTION 1003. Money for Securities Payments to Be Held in
-------------------------------------------
Trust.
- -----
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on
or before each due date of the principal of (or premium, if any) or interest,
if any, on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal of (or premium, if any) or interest, if any, on Securities of such
series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, prior to or on
each due date of the principal of (or premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (or premium, if any) or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) and interest, if any, on
Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any payment of principal of (or premium, if any) or
interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which sums were held by the
Company or such Paying Agent; and, upon such payment by any
<PAGE>
71
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Except as provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series, or any coupon appertaining
thereto, and remaining unclaimed for two years after such principal, premium
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in each Place of Payment for
the series of Securities, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1004, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1005. Limitation on Investment Company Status.
---------------------------------------
The Company shall not take any action, or otherwise permit
to exist any circumstance, that would require the Company or any of its
Subsidiaries to register as an "investment company" under the Investment
Company Act of 1940.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company
or any Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any
<PAGE>
72
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
SECTION 1007. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of
the Company and any Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole.
SECTION 1008. Reports. (a) The Company will file on a timely
basis with the Commission, to the extent such filings are accepted by the
Commission and whether or not the Company has a class of securities registered
under the Exchange Act, the annual reports, quarterly reports and other
documents that the Company would be required to file if it were subject to
Section 13 or 15(d) of the Exchange Act.
(b) The Company will also be required (i) to supply to the
Trustee and each holder of Notes, or supply to the Trustee for forwarding to
each such holder, without cost to such holder, copies of such reports and
documents within 15 days after the date on which the Company files such
reports and documents with the Commission or the date on which the Company
would be required to file such reports and documents if the Company were so
required and (ii) if filing such reports and documents with the Commission is
not accepted by the Commission or is prohibited under the Exchange Act, to
supply at the Company's cost copies of such reports and documents to any
prospective holder of Notes promptly upon written request.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
<PAGE>
73
SECTION 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In
the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition, as the case may be.
SECTION 1103. Selection by Trustee of Securities to Be
----------------------------------------
Redeemed.
- --------
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
--------------------
Except as otherwise specified as contemplated by Section
301, notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities
(including CUSIP number, if any) to be redeemed and shall state:
<PAGE>
74
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or indemnity satisfactory
to the Company, the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
<PAGE>
75
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
The Trustee shall promptly provide the Company with a copy
of any notice of redemption delivered pursuant to this Section 1104.
SECTION 1105. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) a sum
sufficient to pay the Redemption Price of, and accrued interest, if any, on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside
the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further that installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder
<PAGE>
76
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Security Registrar
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities
of the same series and tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall
<PAGE>
77
be applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
------------------------------------------
Securities.
- ----------
Subject to Section 1203, in lieu of making all or any part
of any mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company
together in the case of any Bearer Securities of such series with all
unmatured coupons appertaining thereto, and/or (2) receive credit for the
principal amount of Securities of such series which have been previously
delivered to the Trustee by the Company or for Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided, however, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 1202 (which Securities will, if
not previously delivered, accompany such certificate), stating the basis for
such credit and that such Securities have not been previously so credited and
whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 1202 and without the right to make
any optional sinking fund payment, if any, with respect to such series.
<PAGE>
78
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall
pay to the Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) in cash
a sum equal to any interest that will accrue to the date fixed for redemption
of Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking
fund for any series of Securities, if at any time the amount of cash to be
paid into such sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the
Trustee, unless requested by the Company, shall not give the next succeeding
notice of the redemption of Securities of such series through the operation of
the sinking fund. Any such unused balance of moneys deposited in such sinking
fund shall be added to the sinking fund payment for such series to be made in
cash on the next succeeding sinking fund payment date or, at the request of
the Company, shall be applied at any time or from time to time to the purchase
of Securities of such series, by public or private purchase, in the open
market or otherwise, at a purchase price for such Securities (excluding
accrued interest and brokerage commissions, for which the Trustee or any
Paying Agent will be reimbursed by the Company) not in excess of the principal
amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
<PAGE>
79
SECTION 1302. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such Securities. The
Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) a sum
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest, if any,
on, all the Securities or portions thereof, as the case may be, to be repaid
on such date.
SECTION 1303. Exercise of Option.
------------------
Securities of any series subject to repayment at the option
of the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or
at such other place or places or which the Company shall from time to time
notify the Holders of such Securities) not earlier than 45 days nor later than
30 days prior to the Repayment Date. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such
Security, the principal amount of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination
or denominations of the Security or Securities to be issued to the Holder for
the portion of the principal amount of such Security surrendered that is not
to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of Securities
of the series of which such Security to be repaid is a part. Except as
otherwise may be provided by the terms of any Security providing for repayment
at the option of the Holder thereof, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
----------------------------------------------
Due and Payable.
- ---------------
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case
<PAGE>
80
may be, to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if
any, appertaining thereto maturing after the Repayment Date, the principal
amount of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments
of interest, if any, whose Stated Maturity is on or prior to the Repayment
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not
be accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
-------------------------
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of
<PAGE>
81
such Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series and tenor, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
----------------------------------------
Covenant Defeasance.
- -------------------
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402, or
covenant defeasance of or within a series under Section 1403 in accordance
with the terms of such Securities and in accordance with this Article
Fourteen.
SECTION 1402. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable
to this Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any related coupons on the date the
conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any related coupons, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and any related
coupons and this Indenture insofar as such Securities and any related coupons
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any related coupons to
receive, solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and any related
coupons when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the
prior
<PAGE>
82
exercise of its option under Section 1403 with respect to such Securities and
any related coupons.
SECTION 1403. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable
to this Section with respect to any Securities of or within a series, the
Company shall be released from any obligations specified pursuant to Section
301 as being subject to this Section, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any related coupons shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any related
coupons, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 501(5) or
Section 501(10) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
------------------------------------
Defeasance.
- ----------
The following shall be the conditions to application of
either Section 1402 or Section 1403 to any Outstanding Securities of or within
a series and any related coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any related coupons,
(A) money, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment of principal of and premium, if
any, and interest, if any, under such Securities and any related
coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or
<PAGE>
83
other qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if
any) or installment of interest, if any, and (ii) any mandatory
sinking fund payments or analogous payments applicable to such
Outstanding Securities and any related coupons on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any related coupons;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations
to said payments with respect to such Securities and any related
coupons. Before such a deposit, the Company may give to the Trustee,
in accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future
date in accordance with the terms of the Securities of such series
and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (8)
and (9) of Section 501 are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of
such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
related coupons will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the
<PAGE>
84
same times as would have been the case if such covenant defeasance
had not occurred.
(6) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with.
SECTION 1405. Deposited Money and U.S. Government Obligations
-----------------------------------------------
to Be Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------------
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 1405, the "Trustee") pursuant to Section 1404 in respect of such
Outstanding Securities and any related coupons shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any related coupons 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 Holders of such Securities and any
related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and
any related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
<PAGE>
85
SECTION 1406. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1405 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and such Securities and any related coupons shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1402 or 1403,
as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1405; provided,
however, that if the Company makes any payment of principal of (or premium, if
any) or interest, if any, on any such Security or any related coupon following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities and any related coupons to receive
such payment from the money held by the Trustee or Paying Agent.
SECTION 1407. Qualifying Trustee.
------------------
Any trustee appointed pursuant to Section 1404 for the
purpose of holding money and U.S. Government Obligations deposited pursuant to
that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon
which certificate the Trustee shall be entitled to conclusively rely, that all
conditions precedent provided for herein to the related defeasance or covenant
defeasance have been complied with. In no event shall the Trustee be liable
for any acts or omissions of said Trustee.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable as Bearer Securities,
a meeting of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of
<PAGE>
86
every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided for in Section
106, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in The City of New York or in London for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in paragraph (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder of Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that, if
any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for
<PAGE>
87
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1502(a), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of not less than
such specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of Securities of
any series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such
<PAGE>
88
request, demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
-------------------------------------------
Adjournment of Meetings.
- -----------------------
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as its shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing
the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular
on their face, may be presumed valid and genuine without the proof specified
in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined
as specified in the definition of "Outstanding" in Section 101); provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
<PAGE>
89
SECTION 1506. Counting Votes and Recording Action of
--------------------------------------
Meetings.
- --------
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the Secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. Each copy shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
<PAGE>
90
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
COMPLETE MANAGEMENT, INC.
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
-------------------------------
Name:
Title:
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
---------------------------------------
of Securities to be delivered]
------------------------------
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States persons(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise Complete
Management, Inc. or its agent that such financial institution will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the
owner is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is to
further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-1-1
<PAGE>
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$]__________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a Permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
------------------------------------
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
---------------------------------------
of Securities to be delivered]
------------------------------
This is to certify that based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$]__________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such financial institution has agreed, on its own behalf or through its agent,
that we may advise Complete Management, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-1
<PAGE>
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any
portion of the temporary global Security representing the above-captioned
Securities excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the
Exchange Date or the relevant
Interest Payment Date occurring
prior to the Exchange Date, as
applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euroclear System]
[Cedel]
By
---------------------------------
A-2-2
<PAGE>
S&S Draft
11/13/97
==============================================================================
COMPLETE MANAGEMENT, INC.
TO
THE CHASE MANHATTAN BANK,
Trustee
Subordinated Indenture
Dated as of November __, 1997
==============================================================================
<PAGE>
COMPLETE MANAGEMENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of October___, 1997
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) ................................... 607(a)
(a)(2) ................................... 607(a)
(b) ................................... 607(b), 608
Section 312(c) ................................... 701
Section 314(a) ................................... 703
(a)(4) ................................... 1004
(c)(1) ................................... 102
(c)(2) ................................... 102
(e) ................................... 102
Section 315(b) ................................... 601
Section 316(a)(last
sentence) ................................... 101 ("Outstanding")
(a)(1)(A) ................................... 502, 512
(a)(1)(B) ................................... 513
(b) ................................... 508
(c) ................................... 104(e)
Section 317(a)(1) ................................... 503
(a)(2) ................................... 504
(b) ................................... 1003
Section 318(a) ................................... 111
- --------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES......................................................................................................... 1
RECITALS OF THE COMPANY......................................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions...................................................................1
Act .......................................................................................2
Affiliate..................................................................................2
Authenticating Agent.......................................................................2
Authorized Newspaper.......................................................................2
Bankruptcy Law.............................................................................2
Bearer Security............................................................................2
Board of Directors.........................................................................3
Board Resolution...........................................................................3
Business Day...............................................................................3
Capital Stock..............................................................................3
Capitalized Lease Obligation...............................................................3
Cedel......................................................................................3
Closing Date...............................................................................3
Commission.................................................................................3
Common Depositary..........................................................................3
Company....................................................................................3
Company Request............................................................................3
Consolidated Net Worth.....................................................................4
Corporate Trust Office.....................................................................4
corporation................................................................................4
coupon.....................................................................................4
Debt.......................................................................................4
Default....................................................................................5
Defaulted Interest.........................................................................5
Disqualified Stock.........................................................................5
- --------
Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.
</TABLE>
<PAGE>
ii
<TABLE>
<CAPTION>
Page
<S> <C>
Dollar or $................................................................................5
Euroclear..................................................................................5
Event of Default...........................................................................5
Exchange Act...............................................................................5
Exchange Date..............................................................................5
Generally Accepted Accounting Principles or GAAP...........................................5
Hedging Obligations........................................................................5
Holder.....................................................................................6
Indenture..................................................................................6
Indexed Security...........................................................................6
interest...................................................................................6
Interest Payment Date......................................................................6
Lien.......................................................................................6
Maturity...................................................................................6
Officers' Certificate......................................................................7
Opinion of Counsel.........................................................................7
Original Issue Discount Security...........................................................7
Outstanding................................................................................7
Pari Passu Debt............................................................................8
Paying Agent...............................................................................8
Person.....................................................................................8
Place of Payment...........................................................................8
Predecessor Security.......................................................................8
Redemption Date............................................................................9
Redemption Price...........................................................................9
Registered Security........................................................................9
Regular Record Date........................................................................9
Repayment Date.............................................................................9
Repayment Price............................................................................9
Responsible Officer........................................................................9
Restricted Securities......................................................................9
Restricted Subsidiary......................................................................9
Securities............................................................................... 10
Security Register and Security Registrar................................................. 10
Senior Debt.............................................................................. 10
Senior Nonmonetary Default............................................................... 10
Senior Payment Default................................................................... 11
Significant Subsidiary................................................................... 11
Special Record Date...................................................................... 11
Specified Senior Debt.................................................................... 11
</TABLE>
<PAGE>
iii
<TABLE>
<CAPTION>
Page
<S> <C>
Stated Maturity.......................................................................... 11
Subsidiary............................................................................... 11
Trust Indenture Act or TIA............................................................... 11
Trustee.................................................................................. 11
United States............................................................................ 12
United States person..................................................................... 12
Unrestricted Subsidiary.................................................................. 12
U.S. Government Obligations.............................................................. 12
Vice President........................................................................... 12
Voting Stock............................................................................. 12
Yield to Maturity........................................................................ 12
SECTION 102. Compliance Certificates and Opinions................................ 13
SECTION 103. Form of Documents Delivered to Trustee.............................. 13
SECTION 104. Acts of Holders..................................................... 14
SECTION 105. Notices, etc. to Trustee and Company................................ 16
SECTION 106. Notice to Holders; Waiver........................................... 16
SECTION 107. Effect of Headings and Table of Contents............................ 18
SECTION 108. Successors and Assigns.............................................. 18
SECTION 109. Separability Clause................................................. 18
SECTION 110. Benefits of Indenture............................................... 18
SECTION 111. Governing Law....................................................... 18
SECTION 112. Legal Holidays...................................................... 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..................................................... 19
SECTION 202. Form of Trustee's Certificate of Authentication..................... 20
SECTION 203. Securities Issuable in Global Form.................................. 20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................ 21
SECTION 302. Denominations....................................................... 25
SECTION 303. Execution, Authentication, Delivery and Dating...................... 25
SECTION 304. Temporary Securities................................................ 28
SECTION 305. Registration, Registration of Transfer and Exchange................. 31
</TABLE>
<PAGE>
iv
<TABLE>
<CAPTION>
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<S> <C>
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.................... 35
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset.................................................. 36
SECTION 308. Optional Extension of Stated Maturity............................... 39
SECTION 309. Persons Deemed Owners............................................... 40
SECTION 310. Cancellation........................................................ 41
SECTION 311. Computation of Interest............................................. 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................. 41
SECTION 402. Application of Trust Money.......................................... 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................................... 43
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................. 45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................... 46
SECTION 504. Trustee May File Proofs of Claim.................................... 47
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities...................................................... 48
SECTION 506. Application of Money Collected...................................... 48
SECTION 507. Limitation on Suits................................................. 49
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................ 50
SECTION 509. Restoration of Rights and Remedies.................................. 50
SECTION 510. Rights and Remedies Cumulative...................................... 50
SECTION 511. Delay or Omission Not Waiver........................................ 50
SECTION 512. Control by Holders.................................................. 51
SECTION 513. Waiver of Past Defaults............................................. 51
SECTION 514. Waiver of Stay or Extension Laws.................................... 52
</TABLE>
<PAGE>
v
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.................................................. 52
SECTION 602. Certain Rights of Trustee........................................... 52
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
Securities...................................................... 54
SECTION 604. May Hold Securities................................................. 54
SECTION 605. Money Held in Trust................................................. 54
SECTION 606. Compensation and Reimbursement...................................... 55
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests....................................................... 56
SECTION 608. Resignation and Removal; Appointment of Successor................... 56
SECTION 609. Acceptance of Appointment by Successor.............................. 58
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business........................................................ 59
SECTION 611. Appointment of Authenticating Agent................................. 59
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........................ 61
SECTION 702. Reports by Trustee.................................................. 61
SECTION 703. Reports by Company.................................................. 62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms................ 63
SECTION 802. Successor Person Substituted........................................ 64
SECTION 803. Securities to Be Secured in Certain Events.......................... 64
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................. 65
</TABLE>
<PAGE>
vi
<TABLE>
<CAPTION>
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<S> <C>
SECTION 902. Supplemental Indentures with Consent of Holders..................... 66
SECTION 903. Execution of Supplemental Indentures................................ 68
SECTION 904. Effect of Supplemental Indentures................................... 68
SECTION 905. Conformity with Trust Indenture Act................................. 68
SECTION 906. Reference in Securities to Supplemental Indentures.................. 68
SECTION 907. Notice of Supplemental Indentures................................... 68
SECTION 908. Effect on Senior Debt............................................... 68
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and Interest................. 69
SECTION 1002. Maintenance of Office or Agency..................................... 69
SECTION 1003. Money for Securities Payments to Be Held in Trust................... 71
SECTION 1004. Statement as to Compliance.......................................... 72
SECTION 1005. Limitation on Investment Company Status............................. 72
SECTION 1006. Payment of Taxes and Other Claims................................... 73
SECTION 1007. Corporate Existence................................................. 73
SECTION 1008. Reports............................................................. 73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................................ 74
SECTION 1102. Election to Redeem; Notice to Trustee............................... 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................... 74
SECTION 1104. Notice of Redemption................................................ 75
SECTION 1105. Deposit of Redemption Price......................................... 76
SECTION 1106. Securities Payable on Redemption Date............................... 76
SECTION 1107. Securities Redeemed in Part......................................... 77
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article............................................ 78
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............... 78
SECTION 1203. Redemption of Securities for Sinking Fund........................... 79
</TABLE>
<PAGE>
vii
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article............................................ 80
SECTION 1302. Repayment of Securities............................................. 80
SECTION 1303. Exercise of Option.................................................. 80
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable..................................................... 81
SECTION 1305. Securities Repaid in Part........................................... 82
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................... 82
SECTION 1402. Defeasance and Discharge............................................ 82
SECTION 1403. Covenant Defeasance................................................. 83
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..................... 84
SECTION 1405. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions................ 86
SECTION 1406. Reinstatement....................................................... 86
SECTION 1407. Qualifying Trustee.................................................. 87
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called........................... 87
SECTION 1502. Call, Notice and Place of Meetings.................................. 87
SECTION 1503. Persons Entitled to Vote at Meetings................................ 88
SECTION 1504. Quorum; Action...................................................... 88
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings......................................... 89
SECTION 1506. Counting Votes and Recording Action of Meetings..................... 90
</TABLE>
<PAGE>
viii
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinate to Senior Debt............................... 91
SECTION 1602. Payment over of Proceeds upon Dissolution, etc...................... 91
SECTION 1603. Suspension of Payment When Senior Debt in Default................... 93
SECTION 1604. Payment Permitted If No Default..................................... 94
SECTION 1605. Subrogation to Rights of Holders of Senior Debt..................... 94
SECTION 1606. Provisions Solely to Define Relative Rights......................... 95
SECTION 1607. Trustee to Effectuate Subordination................................. 95
SECTION 1608. No Waiver of Subordination Provisions............................... 95
SECTION 1609. Notice to Trustee................................................... 96
SECTION 1610. Reliance on Judicial Order or Certificate of Liquidating
Agent........................................................... 97
SECTION 1611. Rights of Trustee As a Holder of Senior Debt;
Preservation of Trustees Rights................................. 97
SECTION 1612. Article Applicable to Paying Agents................................. 97
SECTION 1613. No Suspension of Remedies........................................... 97
SECTION 1614. Trustee Not Fiduciary for Holders of Senior Debt.................... 98
SECTION 1615. Trust Moneys Not Subordinated....................................... 98
TESTIMONIUM......................................................................................................99
SIGNATURES AND SEALS.............................................................................................99
FORMS OF CERTIFICATION EXHIBIT A
</TABLE>
<PAGE>
INDENTURE, dated as of October__ 1997, between Complete
Management, Inc., a corporation duly organized and existing under the laws of
the State of New York (herein called the "Company"), having its principal
office at 254 West 31st Street, New York, New York 10001 and The Chase
Manhattan Bank, a New York banking corporation, Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), which may be convertible into or
exchangeable for any securities of the Company, to be issued in one or more
series and up to such principal amount or amounts as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE 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;
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(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; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are
defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 611 to
authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state or
foreign law relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
"Bearer Security" means any Security except a Registered
Security.
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"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.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this Indenture or in
the Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by law or executive
order to close.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity interest (however
designated).
"Capitalized Lease Obligation" means, with respect to any
person, an obligation incurred or assumed under or in connection with any
capital lease of real or personal property that, in accordance with GAAP, has
been recorded as a capital lease.
"Cedel" means Cedel Bank, societe anonyme, or its successor.
"Closing Date" means, with respect to any Securities, the
date on which such Securities are originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this Indenture 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 Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture 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, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
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"Consolidated Net Worth" means, at any date of
determination, shareholders' equity of the Company and its Restricted
Subsidiaries as set forth on the most recently available quarterly or annual
consolidated balance sheet of the Company and its Restricted Subsidiaries,
less any amounts attributable to Disqualified Stock or any equity security
convertible into or exchangeable for Debt, the cost of treasury stock and the
principal amount of any promissory notes receivable from the sale of the
Capital Stock of the Company or any of its Restricted Subsidiaries, each item
to be determined in conformity with GAAP (excluding the effects of foreign
currency adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee, at
which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is
located at 450 West 33rd Street, New York, New York 10001-2697.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or
services, (e) Capitalized Lease Obligations, (f) all Disqualified Stock of
such Person valued at its maximum fixed repurchase price, plus accrued and
unpaid dividends, (g) all obligations of such Person under or in respect of
Hedging Obligations and (h) every obligation of the type referred to in
clauses (a) through (g) of another Person and all dividends of another Person
the payment of which, in either case, such Person has guaranteed. For purposes
of this definition, the "maximum fixed repurchase price" of any Disqualified
Stock that does not have a fixed repurchase price will be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were repurchased on any date on which Debt is required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by,
the fair market value of such Disqualified Stock, such fair market value will
be determined in good faith by the board of directors of the issuer of such
Disqualified Stock. Notwithstanding the foregoing, trade accounts payable and
accrued liabilities arising in the ordinary course of business and any
liability for federal, state or local taxes or other taxes owed by such Person
will not be considered Debt for purposes of this definition.
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"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any
series issuable in global form, the Person designated as Depositary by the
Company pursuant to Section 301 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Securities in global form of that
series.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms or by the terms of any security into which it
is convertible or exchangeable or by contract or otherwise (i) is or upon the
happening of any event or passage of time would be, required to be redeemed
prior to the final Stated Maturity of the relevant series of Securities, (ii)
is redeemable at the option of the holder thereof at any time prior to such
final Stated Maturity or (iii) at the option of the holder thereof, is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect from time to time.
"Hedging Obligations" means the obligations of any person
under (i) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (ii) other agreements or arrangements
designed to protect such person against fluctuations in interest rates or the
value of foreign currencies.
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"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of
Securities established as contemplated by Section 301; provided, however,
that, if at any time more than one Person is acting as Trustee under this
instrument, "Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities for which such Person is Trustee established as contemplated by
Section 301, exclusive, however, of any provisions or terms which relate
solely to other series of Securities for which such Person is not Trustee,
regardless of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original issuance.
"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 at the rate prescribed in such Original Issue
Discount Security.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Lien" means any mortgage, charge, pledge, lien (statutory
or otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired. A Person will be deemed to own subject to a
Lien any property that such Person has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement.
"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
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therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder 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 and any coupons
appertaining thereto; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen; 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;
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provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present
at a meeting of Holders for quorum purposes, (i) the principal amount of an
Original Issue Discount 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 amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed 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 (iii)
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 making such calculation or in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor.
"Pari Passu Debt" means Debt of the Company that ranks pari
passu in right of payment with the Securities.
"Paying Agent" means any Person (including the Company
acting as Paying Agent) authorized by the Company to pay the principal of (or
premium, if any) or interest, if any, on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"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
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or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains, as the case may be.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the
Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any
Security to be repaid at the option of the Holder, the date fixed for such
repayment pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Securities" has the meaning specified in any
"Limitation on Liens" covenant.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
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"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; provided, however, that if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any,
on) and interest on (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any Bankruptcy Law) and other
amounts due on or in connection with any Debt of the Company other than the
Securities or Pari Passu Debt, whether outstanding on the date of this
Indenture or hereafter created, incurred or assumed, unless, in the case of
any particular Debt, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such Debt
shall be subordinated in right of payment to any Debt or other general
unsecured obligations of the Company. Notwithstanding the foregoing, "Senior
Debt" shall not include (A) Debt of the Company that is expressly subordinated
in right of payment to any Senior Debt of the Company or the Securities,
including Debt evidenced by the 8% Convertible Subordinated Debentures Due
2003 issued under the Indenture dated as of June 11, 1996, between the Company
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
and Debt evidenced by the Convertible Subordinated Debentures due December 15,
2003 issued under the Indenture dated as of December 11, 1996, between the
Company and The Chase Manhattan Bank, as Trustee, (B) Debt of the Company that
by operation of law is subordinate to any general unsecured obligations of the
Company, (C) any Debt to any employee of the Company or any of its respective
Subsidiaries, (D) Debt that is Disqualified Stock, (E) Debt of the Company to
any Subsidiary or any other Affiliate of the Company or any of such
Affiliate's Subsidiaries, (F) any liability for federal, state or local taxes
or other taxes, owed or owing by the Company and (G) trade payables owed or
owing by the Company.
"Senior Nonmonetary Default" means the occurrence or
existence of any event, circumstance, condition or state of facts that, by the
terms of any instrument pursuant to which any Specified Senior Debt is
outstanding, permits one or more holders of such Specified Senior Debt (or a
trustee or agent on behalf of the holders thereof) to declare such Specified
Senior Debt due and payable prior to the date on which it would otherwise
become due and payable, other than a Senior Payment Default.
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"Senior Payment Default" means any default in the payment of
principal of (or premium, if any) or interest on Specified Senior Debt beyond
any applicable grace period with respect thereto.
"Significant Subsidiary" means any Restricted Subsidiary of
the Company that together with its Subsidiaries, (a) for the most recent
fiscal year of the Company, accounted for more than 10% of the consolidated
net sales of the Company and its Restricted Subsidiaries or (b) as of the end
of such fiscal year, was the owner of more than 10% of the consolidated assets
of the Company and its Restricted Subsidiaries, in the case of either (a) or
(b), as set forth on the most recently available consolidated financial
statements of the Company for such fiscal year or (c) was organized or
acquired since the end of such fiscal year and would have been a Significant
Subsidiary if it had been owned during such fiscal year.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"Specified Senior Debt" means any Senior Debt which, at the
time of determination, has an aggregate principal amount outstanding of at
least $10 million.
"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 or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
"Subsidiary" means any person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or
indirectly, by the Company and/or one or more other Subsidiaries of the
Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture 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;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
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"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United States of
America (including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified
with respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board of Directors as an Unrestricted Subsidiary in
accordance with any "Unrestricted Subsidiaries" covenant and (b) any
Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on or principal of
the U.S. Government Obligation evidenced by such depository receipt.
"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".
"Voting Stock" means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of a corporation (irrespective
of whether or not at the time stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on
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13
such Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
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 an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition 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.
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Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, 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.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or more
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. If Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1506.
(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
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15
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 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 principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be
a date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such
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16
record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months
after the record date.
(f) Except as provided in Section 104(a), 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.
(g) At any time prior to (but not after) the evidencing to
the Trustee, as provided in this Section, of the taking of any action by the
Holders of the requisite proportion of Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action, any
Holder of a Security the serial number of which is shown by the evidence to be
included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Section, revoke such
action so far as concerns such Security.
SECTION 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents 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 Trustee Administration Department, 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 Indenture
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected
by such event, at his address as it appears in the Security Register,
<PAGE>
17
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
of Registered Securities 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 of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as herein provided. 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.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical
to mail notice of any event to Holders of Registered Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be sufficient giving of such notice for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and in such other
city or cities as may be specified in such Securities on a Business Day at
least twice, the first such publication to be not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of the
first such publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
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
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18
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.
SECTION 107. 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 108. 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 109. Separability Clause.
In case any provision in this Indenture or in any Security
or coupon 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 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto,
any Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons and, with
respect to any provisions hereof relating to the subordination of the
Securities or the rights of holders of Senior Debt, the holders of Senior
Debt, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the law of the State of New York.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, sinking fund payment date or 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 any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section), payment of principal (or
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19
premium, if any) or interest, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date or sinking fund payment date, or at
the Stated Maturity or Maturity; provided that no interest shall accrue on the
payment so deferred for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the forms 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, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities or coupons, as evidenced by their execution of the
Securities or coupons. If the forms of Securities or coupons of any 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 Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all
Securities shall be in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
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20
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By _____________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate
amount of Outstanding Securities of such series represented thereby may from
time to time be increased or decreased to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 303
or Section 304 has been, or simultaneously is, delivered, any instructions by
the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form if such
Security was never issued and sold by the
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21
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest, if any, on any Security in permanent
global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in
the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or Cedel, to the extent of
their interests therein.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
shall be subordinated in right of payment to the Senior Debt of the Company to
the extent and in the manner set forth in Article Sixteen.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth in, 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, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1),
(2), (16) and (17) below), if so provided, may be determined from time to time
by the Company with respect to unissued Securities of the series and set forth
in such Securities of the series when issued from time to time):
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22
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, 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 such interest shall
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date or dates shall be determined, and the
basis upon which interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, where any Registered
Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable and, if different than the location specified in Section
1002, the place or places where notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the events upon the
occurrence of which and the price or prices at which, such Securities
of the series may, pursuant to any optional or mandatory provision,
be redeemed or purchased, in whole or in part, at the option of the
Company, if the Company is to have that option, and any terms and
conditions relevant thereto;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices
<PAGE>
23
at which, and other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(10) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that 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;
(12) if the principal amount of any Securities that will be
payable at the Maturity thereof will not be determinable as of any
date prior to such Maturity, the amount that will be deemed to be the
outstanding principal amount of such Securities;
(13) any provisions in modification of, in addition to or in
lieu of any of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which
<PAGE>
24
any such exchanges may occur, if other than in the manner provided in
Section 305, whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of such series, and
the circumstances under which and the place or places where any such
exchanges may be made and if Securities of the series are to be
issuable in global form, the identity of any initial Depositary
therefor;
(16) the applicability of, any deletions from, modifications
of or additions to the Events of Default of the Company with respect
to Securities of the series, whether or not such Events of Default
are consistent with the Events of Default set forth herein;
(17) the applicability of, any deletions from, modifications
of or additions to the covenants (including the addition of
provisions with respect to the waiver of certain covenants contained
in this Indenture) of the Company with respect to Securities of the
series, whether or not such covenants are consistent with the
covenants set forth herein;
(18) whether the Securities are to be secured;
(19) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent or any other person or entity
to act in connection with such Securities for or on behalf of the
holders thereof or the Company;
(20) the Person to whom any interest on any Registered
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, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(21) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(22) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only
<PAGE>
25
upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions; and
(23) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in any
such indenture supplemental hereto. Not all Securities of any one series need
be issued at the same time, and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall
be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms, or the manner of determining the terms,
of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions, the Registered Securities of such series,
other than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, other than the
Bearer Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or a Vice
President, which Securities or coupons may, but need not, be attested by its
Secretary or an Assistant Secretary. The signature of any of these officers on
the Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons 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
<PAGE>
26
the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupons appertaining thereto, 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 such Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the earlier of the date on which such Bearer Security is delivered and the
date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and
this Indenture. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original issuance of
such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest
rate, stated maturity, date of issuance and date from which interest shall
accrue.
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 TIA
Sections 315(a) through 315(d)) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms (or the manner of determining the terms)
of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
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27
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities and any coupons;
(d) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities, any coupons
and of the supplemental indentures, if any, have been complied with
and that authentication and delivery of such Securities and any
coupons and the execution and delivery of the supplemental indenture,
if any, by the Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities and any coupons, and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any coupons
will not contravene the articles of incorporation or by-laws of the
Company or result in any violation of any of the terms or provisions
of any law or regulation or of any indenture, mortgage or other
agreement known to such Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
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 the preceding two
paragraphs prior to or at the time of issuance of each Security, but such
documents shall be delivered prior to or at the time of issuance of the first
Security of such series.
The Trustee shall not be required to authenticate and
deliver any 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 is not reasonably
acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
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28
No Security or coupon 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 duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture. 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 310 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, 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.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in the form of one or more
Registered Securities in global form, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Registered
Securities in global form that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of the Securities of such
series specified in the terms of such series, (ii) shall be registered in the
name of the Depositary for such Registered Security or Securities in global
form or the nominee of such Depositary and (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions.
Each Depositary designated pursuant to Section 301 must, at
the time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
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, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary
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29
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 (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations; provided, however, that,
except as otherwise provided in Section 301(15), no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 303. 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.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and Cedel,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, unless otherwise specified
in such temporary global Security, upon such presentation by the Common
Depositary, such temporary global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Cedel as to the portion of such
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30
temporary global Security held for its account then to be exchanged, each in
the form set forth in Exhibit A-2 to this Indenture (or in such other form as
may be established pursuant to Section 301); and provided further that
definitive Bearer Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section
303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Security shall be exchanged for definitive Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or Cedel, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or Cedel, as the case may be,
a certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Cedel, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euroclear or Cedel. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and Cedel on such Interest Payment Date upon delivery by Euroclear
and Cedel to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of
the Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euroclear or Cedel,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be
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31
exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except
as otherwise provided in this paragraph, no payments of principal (or premium,
if any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Cedel and not
paid as herein provided shall be returned to the Trustee immediately prior to
the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
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 for each series of Securities (the register
maintained in the Corporate Trust Office of the Trustee or in any other office
or agency of the Company in a Place of Payment with respect to a series of
Securities being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers
of Registered Securities. The Security Register shall be in written form or
any other form capable of being converted into written form within a
reasonable time. At all reasonable times, the Security Register shall be open
to inspection by the Trustee. The Trustee is hereby initially appointed as
security registrar (the "Security Registrar") for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided. In no event shall there be more than one Security Register for each
series.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee, one or
more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and
tenor, upon surrender of the Registered Securities to be exchanged at such
office or agency. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be issued
in exchange for Registered Securities.
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32
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the
same series of any authorized denomination and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be exchanged at
any such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons
in default, any such permitted exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment, as
the case may be, and interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in
any event not later than the earliest date on
<PAGE>
33
which such interest may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in aggregate principal amount equal to the
principal amount of such beneficial owner's interest in such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent
global Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as the
portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and provided,
further, that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such permanent global Security is payable in accordance with the provisions of
this Indenture.
If at any time the Depositary for any Registered Securities
of a series in global form notifies the Company that it is unwilling or unable
to continue as Depositary for such Registered Securities or if at any time the
Depositary for such Registered Securities shall no longer be eligible under
Section 303, the Company shall appoint a successor Depositary with respect to
such Registered Securities. If a successor Depositary for such Registered
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301 that such Registered Securities be
represented by one or more Registered Securities in global form shall no
longer be effective and the Company will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive
<PAGE>
34
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Security or Securities representing such Registered Securities in exchange for
such Registered Security or Securities in global form, such definitive
Securities to be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee.
The Company may at any time and in its sole discretion
determine that the Registered Securities of any series issued in global form
shall no longer be represented by a Registered Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Registered Security or Securities representing such Registered
Securities, in exchange for such Registered Security or Securities in global
form, such definitive Securities to be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
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, 1107 or 1305
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 selection for redemption
of Securities of that series under Section 1103 or 1203 and ending at the
close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the
<PAGE>
35
first publication of the relevant notice of redemption or, if Securities of
the series are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee together with, in
proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or coupon 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 or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security for which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding
to the coupons, if any, appertaining to such mutilated, destroyed, lost or
stolen Security or to the Security to which such mutilated, destroyed, lost or
stolen coupon appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except
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36
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States.
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 with its coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon 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 and their
coupons, if any, 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
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such 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 of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant
to Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account located in the United States
maintained by the payee, provided that appropriate instructions with respect
to any such account shall be delivered to the paying agent by the applicable
Regular Record Date or Special Record Date.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest, if any, may
be made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
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37
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Cedel with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Cedel to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date 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 and, if applicable, interest on such defaulted interest (to the
extent lawful) at the rate specified in the Securities of such series (such
defaulted interest and, if applicable, interest thereon herein collectively
called "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 Registered 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
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the
manner provided in Section 106, 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 given,
such Defaulted Interest shall be paid to the Persons in whose name
the Registered 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).
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38
(2) The Company may make payment of any Defaulted Interest
on the Registered 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.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to an Optional Reset Date for such
Security, which such notice shall contain such information as may be required
by the Trustee to transmit the Reset Notice as hereinafter defined. Not later
than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in
the manner provided for in Section 106, to the Holder of any such Security a
notice (the "Reset Notice") indicating whether the Company has elected to
reset the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable), and if so (i) such new interest rate (or
such new spread or spread multiplier, if applicable) and (ii) the provisions,
if any, for redemption during the period from such Optional Reset Date to the
next Optional Reset Date or if there is no such next Optional Reset Date, to
the Stated Maturity Date of such Security (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior
to the Optional Reset Date, the Company may, at its option, revoke the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) provided for in the Reset Notice and establish
an interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset Notice,
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or
such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
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39
The Holder of any such Security will have the option to
elect repayment by the Company of the principal of such Security on each
Optional Reset Date at a price equal to the principal amount thereof plus
interest accrued to such Optional Reset Date. In order to obtain repayment on
an Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the period
for delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to such Optional Reset Date and except that, if the Holder
has tendered any Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender for repayment
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. Optional Extension of Stated Maturity.
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the
option of the Company for the period or periods specified on the face of such
Security (each an "Extension Period") up to but not beyond the date (the
"Final Maturity") set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the Trustee of
such exercise at least 50 but not more than 60 days prior to the Stated
Maturity of such Security in effect prior to the exercise of such option (the
"Original Stated Maturity"). If the Company exercises such option, the Trustee
shall transmit, in the manner provided for in Section 106, to the Holder of
such Security not later than 40 days prior to the Original Stated Maturity a
notice (the "Extension Notice") indicating (i) the election of the Company to
extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest
rate, if any, applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period. Upon the Trustee's
transmittal of the Extension Notice, the Stated Maturity of such Security
shall be extended automatically and, except as modified by the Extension
Notice and as described in the next paragraph, such Security will have the
same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable.
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All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on
the Original Stated Maturity once the Company has extended the Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension Notice, the
Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the tenth day before the Original Stated
Maturity.
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Registered 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 Registered
Security is registered as the owner of such Registered Security for the
purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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 of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
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41
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
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 cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of
by the Trustee in accordance with its customary procedures and certification
of their disposal delivered to the Company unless by Company Order the Company
shall direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day
months.
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 any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto) and the Trustee, at the expense of the Company,
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42
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption or
surrendered for repayment and maturing after the relevant
Redemption Date or Repayment Date, whose surrender has been
waived as provided in Section 1106 or Section 1304, as
applicable, and (iv) Securities and coupons of such series
for whose payment money has theretofore been deposited in
trust with the Trustee or any Paying Agent 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 and, in the case of (i) or
(ii) below, any coupons appertaining thereto 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) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and
interest, if any, 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;
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43
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 606,
the obligations of the Trustee to any Authenticating Agent under Section 611
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 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for whose payment such
money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law. Any funds
held in trust pursuant to this Section shall not be subject to the rights of
the holders of Senior Debt pursuant to Article Sixteen.
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 (whatever the
reason for such Event of Default and whether or not it shall be occasioned by
the provisions of Article Sixteen or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
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(1) default in the payment of any interest on any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) failure to perform or comply with the Indenture
provisions under Article Eight; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of the Securities of that series and Article
Twelve; or
(5) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture (other than a default
in the performance, or breach of a covenant or agreement which is
specifically dealt with elsewhere in this Section or which has
expressly been included in this Indenture solely for the benefit of a
series of Securities other than that series), 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 Company and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) (i) an event of default has occurred under any mortgage,
bond, indenture, loan agreement or other document evidencing an issue
of Debt of the Company or any Significant Subsidiary, which issue has
an aggregate outstanding principal amount of not less than $[___]
million, and such default has resulted in such Debt becoming, whether
by declaration or otherwise, due and payable prior to the date on
which it would otherwise become due and payable or (ii) a default in
any payment when due at final maturity of any such Debt; or
(7) failure by the Company or any of its Subsidiaries to pay
one or more final judgments, the uninsured portion of which exceeds
in the aggregate $[___] million, which judgment or judgments are not
paid, discharged or stayed for a period of 60 days; or
(8) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or
in respect of the Company or any Subsidiary under any applicable
Bankruptcy Law, or appointing a receiver, liquidator, assignee,
trustee,
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45
sequestrator (or other similar official) of the Company or any
Subsidiary or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 90
consecutive days; or
(9) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Bankruptcy Law, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become
due; or
(10) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default other than as specified in Section
501(8) or 501(9) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable. If an
Event of Default described in Section 501(8) or Section 501(9) occurs and is
continuing, then the principal amount of all the Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect
to Securities of any series has been made or an ipso facto acceleration with
respect to Securities of all series has occurred as aforesaid and before a
judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, the Holders of a majority in
principal amount of the Outstanding Securities of that series (or of all
series, as the case may be), by written notice to the Company and the Trustee,
may rescind and annul such declaration or such ipso facto acceleration and its
consequences if
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46
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest, if any, on all
Outstanding Securities of that series (or of all series, as
the case may be) and any related coupons,
(B) all unpaid principal of (and premium, if any,
on) any Outstanding Securities of that series (or of all
series, as the case may be) which has become due otherwise
than by such declaration of acceleration or acceleration,
and interest on such unpaid principal at the rate or rates
prescribed therefor in such Securities,
(C) interest on overdue interest, if any, at the
rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration or 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.
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 installment of
interest on any Security and any related coupon 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,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then
due and payable on such
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47
Securities and coupons for principal (and premium, if any) and interest, if
any, and interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) 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 (or of all series, as
the case may be) 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 the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to 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 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons 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 and coupons 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 premium, if any) or interest, if any, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 606;
Second: Subject to Article Sixteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any)
and interest, if any, on the Securities and coupons 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
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49
amounts due and payable on such Securities and coupons for principal
(and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related
coupons 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 in the case of any Event of
Default described in clause (1), (2), (3), (4), (5), (6), (7) or (10)
of Section 501, or, in the case of any Event of Default described in
clause (8) or (9) of Section 501, the Holders of not less than 25% in
principal amount of all Outstanding Securities, shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority or more in principal amount of the Outstanding Securities
of that series in the case of any Event of Default described in
clause (1), (2), (3), (4), (5), (6), (7) or (10) of Section 501, or,
in the case of any Event of Default described in clause (8) or (9) of
Section 501, by the Holders of a majority or more in principal amount
of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3), (4), (5), (6), (7) or (10) of
Section 501, or of Holders of all Securities in the case of any Event of
Default described in clause (8) or (9) of Section 501, or to obtain or to seek
to obtain priority or preference over
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50
any other of such Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3), (4), (5), (6), (7) or (10) of Section 501,
or of Holders of all Securities in the case of any Event of Default described
in clause (8) or (9) of Section 501.
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, as provided herein (including, if
applicable, Article Fourteen) and in such Security, of the principal of (and
premium, if any) and (subject to Section 307) interest, if any, on, such
Security or payment of the coupons appertaining thereto on the respective
Stated Maturities expressed in such Security or coupons (or, in the case of
redemption or repayment, on the Redemption Date or Repayment 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 of Securities and coupons 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.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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51
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to 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.
With respect to the Securities of any series, the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that in each
case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default described in clause (1), (2), (3), (4), (5), (6), (7) or (10) of
Section 501 (or, in the case of a default described in clause (8) or (9) of
Section 501, the Holders of not less than a majority in principal amount of
all Outstanding Securities may waive any such past default), and its
consequences, except a default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or any related
coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
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Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in
the manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in
the payment of the principal of (or premium, if any) or interest, if any, on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related coupons; and provided further that in the case of any Default of the
character specified in Section 501(5) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
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SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
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54
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Trustee Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof. The
Trustee shall not be charged with knowledge of a Default or an Event of
Default or of the identity of a Significant Subsidiary unless (i) a
Responsible Officer of the Trustee assigned to and working in its Corporate
Trustee Administration Department shall have actual knowledge thereof or (ii)
the Trustee shall have received notice thereof in accordance with Section 105
from the Company or a Holder of a Security.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
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SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance
of such obligations of the Company, the Trustee shall have a claim prior to
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest, if any, on particular Securities or any coupons.
Without limiting any other rights available to the Trustee
under applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(8) or (9), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
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56
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the
satisfaction and discharge of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.
(a) There shall be at all times a Trustee hereunder which
shall be eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(5)
and shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b) The following indentures shall be deemed to be
specifically described herein for the purposes of clause (i) of the first
proviso contained in TIA Section 310(b): the Indenture dated as of June 11,
1996, for the Company's 8% Convertible Subordinated Debentures Due 2003 and
the indenture dated as of December 11, 1996 for the Company's Convertible
Subordinated Debentures due December 15, 2003.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to the Holders of Securities of such series in the manner provided for
in Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates. Whenever there is a
successor Trustee with respect to one or more (but less than all) series of
securities issued pursuant to this Indenture, the terms "Trustee," "Indenture"
and "Securities" shall have the meanings specified in the provisos to the
respective definitions of those terms in Section 101 which contemplate such
situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities. In case any of the Securities shall
not have been authenticated by such predecessor Trustee, any successor Trustee
may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
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SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee (which in the case of an appointment of an Authenticating Agent
to authenticate Securities on original issue, may contain procedures for such
authentication acceptable to the Trustee), and a copy of such instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a
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termination, or in case at any time such Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give written notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, in the manner provided for in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 606.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By _________________________
as Authenticating Agent
By _________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any
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information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Securities, in the
manner and to the extent provided in TIA Section 313(c), a brief report dated
as of such May 15 if required by TIA Section 313(a).
A copy of each report required by Section 313 of the TIA to
be transmitted by the Trustee to the Holders of the Securities shall, at the
time of such transmission, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 703. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
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(3) transmit to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing
thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company may not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, sell, assign, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any other Person (in one transaction or a series of related
transactions), unless each of the following conditions is satisfied:
(1) either (i) the Company is the surviving corporation or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by sale, assignment, transfer, lease or other disposition
the properties and assets of the Company substantially as an entirety
(the "Surviving Entity") (A) is a corporation, partnership or trust
organized and validly existing under the laws of the United States,
any state thereof or the District of Columbia and (B) expressly
assumes, by a supplemental indenture in form satisfactory to the
Trustee, all of the Company's obligations under the Indenture and the
Securities;
(2) immediately after giving effect to such transaction and
treating any obligation of the Company or a Restricted Subsidiary in
connection with or as a result of such transaction as having been
incurred as of the time of such transaction, no Default or Event of
Default has occurred and is continuing;
(3) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Company (or of the
Surviving Entity if the Company is not the continuing obligor under
this Indenture) is equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction;
(4) if the covenants applicable to any series of Securities
includes a "Limitation on Debt" covenant, immediately after giving
effect to such transaction on a pro forma basis (on the assumption
that the transaction occurred at the beginning of
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the most recently ended four full fiscal quarter period for which
internal financial statements are available) the Company (or the
Surviving Entity if the Company is not the continuing obligor under
this Indenture) could incur at least $1.00 of additional Debt (other
than Permitted Debt (as defined in or pursuant to the Board
Resolution or supplemental indenture creating such series)) pursuant
to such "Limitation on Debt" covenant;
(5) if any of the property or assets of the Company or any
of its Restricted Subsidiaries would thereupon become subject to any
Lien, the provisions of any "Limitation on Liens" covenant applicable
to any series of Securities are complied with; and
(6) the Company delivers, or causes to be delivered, to the
Trustee, in form reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
SECTION 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance, sale,
assignment, transfer, lease or other disposition of the properties and assets
of the Company substantially as an entirety to any Person in accordance with
Section 801, in which the Company is not the continuing obligor under the
Indenture the Surviving Entity will succeed to and be substituted for, and may
exercise every right of, the Company hereunder, and thereafter (except in the
case of a lease) the Company will be discharged from all its obligations and
covenants hereunder and under the Securities.
SECTION 803. Securities to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or
merger of the Company into any other corporation, or upon any conveyance,
sale, assignment, transfer, lease or other disposition of the property and
assets of the Company substantially as an entirety to any other Person, any
property or assets of the Company would thereupon become subject to any Lien,
then unless such Lien could be created pursuant to the "Limitation on Liens"
covenant applicable to any series of Securities without equally and ratably
securing such Securities, the Company, prior to or simultaneously with such
consolidation, merger, conveyance, lease or transfer, will, as to such
Restricted Securities, secure the Securities Outstanding hereunder (together
with, if the Company shall so determine, any other Debt of the Company now
existing or hereafter created which is not subordinate in right of payment to
the Securities) equally and ratably with (or prior to) the Debt which upon
such consolidation, merger, conveyance, sale, assignment, transfer, lease or
other disposition is to become secured as to such Restricted Securities by
such Lien, or will cause such Securities
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to be so secured; provided that, for the purpose of providing such equal and
ratable security, the principal amount of Original Issue Discount Securities
and Indexed Securities shall mean that amount which would at the time of
making such effective provision be due and payable pursuant to Section 502 and
the terms of such Original Issue Discount Securities and Indexed Securities
upon a declaration of acceleration of the Maturity thereof, and the extent of
such equal and ratable security shall be adjusted, to the extent permitted by
law, as and when said amount changes over time pursuant to the terms of such
Original Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series
of Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the
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interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to this Indenture; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 609(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities, to
cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising
under this Indenture; provided such action shall not adversely affect
the interests of the Holders of Securities of any series and any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority
in principal amount of all Outstanding Securities of any series, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which affect such series of Securities or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no
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such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of such series,
(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of
such series, or reduce the principal amount thereof (or premium, if
any) or the rate of interest, if any, thereon, or reduce the amount
of the principal of an Original Issue Discount Security of such
series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any Holder
of any Security of such series, or change any Place of Payment where
any Security of such series or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or
after the Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may
be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain
provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section
1504 for quorum or voting with respect to Securities of such series,
or
(3) modify any of the provisions of this Section or Section
513 hereof or any "Waiver of Certain Covenants" covenant contained
herein, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series
cannot be modified or waived without the consent of the Holder of
each Outstanding Security of such series, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to the
Holders thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, or which adds any
covenant or other provision solely for the benefit of one or more particular
series of Securities shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then
in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental
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indenture, but failure by the Company to give any such notice as aforesaid
shall not affect the validity or effectiveness of any such supplemental
indenture.
SECTION 908. Effect on Senior Debt.
No supplemental indenture shall adversely affect the rights
of holders of Specified Senior Debt under Article Sixteen without the consent
of the representative of such holders.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if Any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any) and interest, if
any, on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series
of Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
If the Securities of a series are issuable only as
Registered Securities, the Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange, where Securities
of that series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in The City of New York, an office or agency
where any Registered Securities of that series may be presented or surrendered
for payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable,
where notices and demands to or upon the Company in respect of the Securities
of that series and this
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Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the second following paragraph (and not otherwise) (B) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency where
Securities of that series and related coupons may be presented and surrendered
for payment; provided, however, that, if the Securities of that series are
listed on any stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United
States so long as the Securities of that series are listed on such exchange,
and (C) subject to any laws or regulations applicable thereto, in a Place of
Payment for that series located outside the United States an office or agency
where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange, where Securities of that series that are convertible and
exchangeable may be surrendered for conversion or exchange, as applicable and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that payment of principal of (and premium, if any) and
interest, if any, on any Bearer Security shall be made at the office of the
Company's Paying Agent in The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium or interest, as the case
may be, at all offices or agencies outside the United States maintained for
such purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind any such designation; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
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above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities as contemplated by Section
301 with respect to a series of Securities, the Company hereby designates as a
Place of Payment for each series of Securities the office or agency of the
Company in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such
city and as its agent to receive all such presentations, surrenders, notices
and demands.
SECTION 1003. Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on
or before each due date of the principal of (or premium, if any) or interest,
if any, on any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal of (or premium, if any) or interest, if any, on Securities of such
series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, prior to or on
each due date of the principal of (or premium, if any) or interest, if any, on
any Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (or premium, if any) or interest, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) and interest, if any, on
Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any payment of principal of (or premium, if any) or
interest, if any, on the Securities of such series; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such sums.
Except as provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series, or any coupon appertaining
thereto, and remaining unclaimed for two years after such principal, premium
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in each Place of Payment for
the series of Securities, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1004, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
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SECTION 1005. Limitation on Investment Company Status.
The Company shall not take any action, or otherwise permit
to exist any circumstance, that would require the Company or any of its
Subsidiaries to register as an "investment company" under the Investment
Company Act of 1940.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company
or any Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of
the Company and any Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries as a whole.
SECTION 1008. Reports. (a) The Company will file on a timely
basis with the Commission, to the extent such filings are accepted by the
Commission and whether or not the Company has a class of securities registered
under the Exchange Act, the annual reports, quarterly reports and other
documents that the Company would be required to file if it were subject to
Section 13 or 15(d) of the Exchange Act.
(b) The Company will also be required (i) to supply to the
Trustee and each holder of Notes, or supply to the Trustee for forwarding to
each such holder, without cost to such holder, copies of such reports and
documents within 15 days after the date on which the Company files such
reports and documents with the Commission or the date on which the Company
would be required to file such reports and documents if the Company were so
required and (ii) if filing such reports and documents with the Commission is
not accepted by the Commission or is prohibited under the Exchange Act, to
supply at the Company's cost copies of such reports and documents to any
prospective holder of Notes promptly upon written request.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In
the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition, as the case may be.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities of such
series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been
or is to be redeemed.
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SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section
301, notice of redemption shall be given in the manner provided for in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed.
All notices of redemption shall identify the Securities
(including CUSIP number, if any) to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or
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indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
The Trustee shall promptly provide the Company with a copy
of any notice of redemption delivered pursuant to this Section 1104.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) a sum
sufficient to pay the Redemption Price of, and accrued interest, if any, on,
all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only at an office or agency located outside
the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further that installments
of interest on Registered Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered
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as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Security Registrar
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities
of the same series and tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
Subject to Section 1203, in lieu of making all or any part
of any mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (1) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Company
together in the case of any Bearer Securities of such series with all
unmatured coupons appertaining thereto, and/or (2) receive credit for the
principal amount of Securities of such series which have been previously
delivered to the Trustee by the Company or for Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided, however, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 1202 (which Securities will, if
not previously delivered, accompany such certificate), stating the basis for
such credit and that such Securities have not been previously so credited and
whether the Company intends to exercise its right to make a permitted optional
sinking fund payment with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 1202 and without the right to make
any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall
pay to the Trustee or a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) in cash
a sum equal to any interest that will accrue to the date fixed for redemption
of Securities or portions thereof to be redeemed on such sinking fund payment
date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking
fund for any series of Securities, if at any time the amount of cash to be
paid into such sinking fund on the next succeeding sinking fund payment date,
together with any unused balance of any preceding sinking fund payment or
payments for such series, does not exceed in the aggregate $100,000, the
Trustee, unless requested by the Company, shall not give the next succeeding
notice of the redemption of Securities of such series through the operation of
the sinking fund. Any such unused balance of moneys deposited in such sinking
fund shall be added to the sinking fund payment for such series to be made in
cash on the next succeeding sinking fund payment date or, at the request of
the Company, shall be applied at any time or from
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time to time to the purchase of Securities of such series, by public or
private purchase, in the open market or otherwise, at a purchase price for
such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any Paying Agent will be reimbursed by the Company) not
in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in
the terms of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such Securities. The
Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) a sum
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest, if any,
on, all the Securities or portions thereof, as the case may be, to be repaid
on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option
of the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or
at such other place or places or which the Company shall from time to time
notify the Holders of such Securities) not earlier than 45 days nor later than
30 days prior to the Repayment Date. If less than the entire principal amount
of such Security is to be repaid in accordance with the terms of such
Security, the principal amount of such Security to be repaid, in increments
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of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to
the Holder for the portion of the principal amount of such Security
surrendered that is not to be repaid, must be specified. The principal amount
of any Security providing for repayment at the option of the Holder thereof
may not be repaid in part if, following such repayment, the unpaid principal
amount of such Security would be less than the minimum authorized denomination
of Securities of the series of which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security providing for
repayment at the option of the Holder thereof, exercise of the repayment
option by the Holder shall be irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon surrender
of any such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing after the
Repayment Date, the principal amount of such Security so to be repaid shall be
paid by the Company, together with accrued interest, if any, to the Repayment
Date; provided, however, that coupons whose Stated Maturity is on or prior to
the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of
Registered Securities, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not
be accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any
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Paying Agent any such missing coupon in respect of which a deduction shall
have been made as provided in the preceding sentence, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date)
shall, until paid, bear interest from the Repayment Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Registered Security or
Securities of the same series and tenor, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance of the Securities of or within a series under Section 1402, or
covenant defeasance of or within a series under Section 1403 in accordance
with the terms of such Securities and in accordance with this Article
Fourteen.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable
to this Section with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any related coupons on the date the
conditions set forth in Section 1404 are satisfied (hereinafter,
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"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any related coupons, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in (A) and (B) below, and to have
satisfied all its other obligations under such Securities and any related
coupons and this Indenture insofar as such Securities and any related coupons
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any related coupons to
receive, solely from the trust fund described in Section 1404 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and any related
coupons when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Fourteen. Subject to compliance with this Article Fourteen, the
Company may exercise its option under this Section 1402 notwithstanding the
prior exercise of its option under Section 1403 with respect to such
Securities and any related coupons.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the above option applicable
to this Section with respect to any Securities of or within a series, the
Company shall be released from any obligations specified pursuant to Section
301 as being subject to this Section, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any related coupons shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any related
coupons, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 501(5) or
Section 501(10) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any related
coupons shall be unaffected thereby.
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SECTION 1404. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of
either Section 1402 or Section 1403 to any Outstanding Securities of or within
a series and any related coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any related coupons,
(A) money, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment of principal of and premium, if
any, and interest, if any, under such Securities and any related
coupons, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any related
coupons on the Stated Maturity (or Redemption Date, if applicable) of
such principal (and premium, if any) or installment of interest, if
any, and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any related
coupons on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities
and any related coupons; provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to such
Securities and any related coupons, and provided further that upon
the effectiveness of this Section 1404, the money or U.S. Government
Obligations deposited shall not be subject to the rights of the
holders of Senior Debt pursuant to the provisions of Article Sixteen.
Before such a deposit, the Company may give to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future
date in accordance with the terms of the Securities of such series
and Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (8)
and (9) of Section 501 are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
the expiration of such period).
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(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of execution of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of
such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
related coupons will not recognize income, gain or loss for federal
income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(6) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 301.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with.
(8) No event or condition shall exist that pursuant to the
provisions of Sections 1602 and 1603 would prevent the Company from
making payments of the principal of (and premium, if any, on) or
interest on the Securities on the date of such deposit or at any time
during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
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SECTION 1405. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 1405, the "Trustee") pursuant to Section 1404 in respect of such
Outstanding Securities and any related coupons shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any related coupons 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 Holders of such Securities and any
related coupons of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and
any related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to
be deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 1406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1405 by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and such Securities and any related coupons shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1402 or 1403,
as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1405; provided,
however, that if the Company makes any payment of principal of (or premium, if
any) or interest, if any, on any such Security or any related coupon following
the reinstatement of its obligations, the
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Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
SECTION 1407. Qualifying Trustee.
Any trustee appointed pursuant to Section 1404 for the
purpose of holding money and U.S. Government Obligations deposited pursuant to
that Section shall be appointed under an agreement in form acceptable to the
Trustee and shall provide to the Trustee a certificate of such trustee, upon
which certificate the Trustee shall be entitled to conclusively rely, that all
conditions precedent provided for herein to the related defeasance or covenant
defeasance have been complied with. In no event shall the Trustee be liable
for any acts or omissions of said Trustee.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities,
a meeting of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided for in Section 106, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or
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shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in The City of New York or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder of Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that, if
any action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1502(a), except that such notice need be given only once
not less than five days prior to the date on which the meeting is scheduled to
be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding
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Securities at the time shall constitute a quorum for the taking of any action
set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of not less than
such specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of Securities of
any series with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes,
<PAGE>
90
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 104 and the appointment of any proxy shall be
proved in the manner specified in Section 104 or by having the signature of
the person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Outstanding Securities of such series held or represented by him (determined
as specified in the definition of "Outstanding" in Section 101); provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of
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91
all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any series shall be
prepared by the Secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, for the
benefit of the holders, from time to time, of Senior Debt that, to the extent
and in the manner hereinafter set forth in this Article Sixteen, the Debt
represented by the Securities and the payment of the principal of (and
premium, if any) and interest on each and all of the Securities are hereby
expressly made subordinate and subject in right of payment as provided in this
Article to the prior payment in full of all Senior Debt. The Securities shall
rank pari passu with and not be "Senior Indebtedness of the Company" with
respect to the 8% Convertible Subordinated Debentures Due 2003 issued under
the Indenture dated as of June 11, 1996, between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as Trustee, and the
Convertible Subordinated Debentures due December 15, 2003 issued under the
Indenture dated as of December 11, 1996, between the Company and The Chase
Manhattan Bank, as Trustee.
SECTION 1602. Payment over of Proceeds upon Dissolution,
etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets or liabilities of the
Company, then and in any such event
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92
(1) the holders of Senior Debt shall be entitled to receive
payment in full of all amounts due on or in respect of all Senior
Debt, or provision shall be made for such payment before the Holders
of the Securities are entitled to receive any payment or distribution
of any kind or character (other than any payment or distribution in
the form of equity securities or subordinated securities of the
Company or any successor obligor with respect to the Senior Debt
provided for by a plan of reorganization or readjustment that, in the
case of any such subordinated securities, are subordinated in right
of payment to all Senior Debt that may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article Sixteen
(such equity securities or subordinated securities hereinafter being
"Permitted Junior Securities")) on account of principal of (or
premium, if any, on) or interest on the Securities; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than a payment or distribution in the form of Permitted Junior
Securities), by set-off or otherwise, to which the Holders or the
Trustee would be entitled but for the provisions of this Article
Sixteen shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Debt or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Debt may
have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Debt held or represented by
each, to the extent necessary to make payment in full of all Senior
Debt remaining unpaid, after giving effect to any concurrent payment
or distribution to the holders of such Senior Debt; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any Security
shall have received any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, in respect of principal of (and premium, if any) or
interest on the Securities before all Senior Debt is paid in full or
payment thereof provided for, then and in such event such payment or
distribution (other than a payment or distribution in the form of
Permitted Junior Securities) shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay
all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance,
<PAGE>
93
transfer or lease of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and
liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in Article Eight.
SECTION 1603. Suspension of Payment When Senior Debt in
Default.
(a) Unless Section 1602 shall be applicable, upon (1) the
occurrence of a Senior Payment Default and (2) receipt by the Trustee from a
representative of holders of Specified Senior Debt of written notice of such
occurrence, then no payment or distribution of any assets of the Company of
any kind or character shall be made by the Company on account of principal of
(or premium, if any) or interest on the Securities or on account of the
purchase or redemption or other acquisition of Securities unless and until
such Senior Payment Default shall have been cured or waived in writing or
shall have ceased to exist or such Senior Debt shall have been discharged,
after which the Company shall resume making any and all required payments in
respect of the Securities, including any missed payments.
(b) Unless Section 1602 shall be applicable, upon (1) the
occurrence of a Senior Nonmonetary Default and (2) receipt by the Trustee from
a representative of holders of Specified Senior Debt of written notice of such
occurrence, then no payment or distribution of any assets of the Company of
any kind or character shall be made by the Company on account of any principal
of (or premium, if any) or interest on the Securities or on account of the
purchase or redemption or other acquisition of Securities for a period
("Payment Blockage Period") commencing on the earlier of the date of receipt
by the Company or the date of receipt by the Trustee of such written notice
from such representative (the "Blockage Notice") unless and until (subject to
any blockage of payments that may then be in effect under paragraph (a) of
this Section) (x) more than 179 days shall have elapsed since receipt of such
Blockage Notice by the Company or the Trustee (the "Initial Period"),
whichever was earlier, (y) such Senior Nonmonetary Default shall have been
cured or waived or (z) such Payment Blockage Period shall have been terminated
by written notice to the Company or the Trustee by the representative
initiating such Payment Blockage Period (whichever shall occur first), after
which, in the case of clause (x), (y) or (z), the Company shall resume making
any and all required payments in respect of the Securities, including any
missed payments. Any number of additional Payment Blockage Periods may be
commenced during the Initial Period; provided, however, that no such
additional Payment Blockage Periods extend beyond the Initial Period. After
the expiration of the Initial Period, no Payment Blockage Period may be
commenced until at least 181 consecutive days shall have elapsed from the last
day of the Initial Period. No Senior
<PAGE>
94
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period with respect to the Specified Senior Debt
initiating such Payment Blockage Period shall be, or be made, the basis for
the commencement of a subsequent Payment Blockage Period unless such Senior
Nonmonetary Default shall have been cured or waived for a period of not less
than 90 consecutive days. Notwithstanding any other provision of this
Agreement, only one Payment Blockage Period may be commenced within any
consecutive 365-day period, and no event of default with respect to Specified
Senior Debt which existed or was continuing on the date of the commencement of
any Payment Blockage Period initiated by or behalf of such Specified Senior
Debt shall be, or be made, the basis for the commencement of a second Payment
Blockage Period whether or not within a period of 365 consecutive days unless
such event of default shall have been cured or waived for a period of not less
than 90 consecutive days subsequent to the commencement of such initial
Payment Blockage Period. In no event will a Payment Blockage Period extend
beyond 179 days.
(c) In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, then and in such event
such payment shall be paid over and delivered forthwith to the Company.
SECTION 1604. Payment Permitted If No Default.
Nothing contained in this Article Sixteen or elsewhere in
this Indenture or in any of the Securities shall prevent the Company, at any
time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Company referred to in
Section 1602 or under the conditions described in Section 1603, from making
payments at any time of principal of (and premium, if any, on) or interest on
the Securities.
SECTION 1605. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full of all Senior Debt, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to Senior Debt of the Company to the same extent as the
Securities are subordinated and which is entitled to like rights of
subrogation) to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Debt of any cash, property
or securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Sixteen, and no payments
over pursuant to the provisions of this Article Sixteen to the holders of
Senior Debt by Holders of the Securities or the Trustee,
<PAGE>
95
shall, as among the Company, its creditors other than holders of Senior Debt,
and the Holders of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Debt.
SECTION 1606. Provisions Solely to Define Relative Rights.
The provisions of this Article Sixteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Debt on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Company and the
Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of
(and premium, if any) and interest on the Securities as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Debt; or (c) prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders of Senior
Debt.
SECTION 1607. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 1608. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Debt to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder, or
by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may
have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Sixteen or the obligations hereunder of the Holders of the Securities to the
holders of Senior Debt, do any one or more of the following: (1) change the
manner, place or terms of payment or extend the time of payment of, or
<PAGE>
96
renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (2) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Debt; (3) release any Person liable in any manner for the collection of
Senior Debt; and (4) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1609. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of
any payment to or by the Trustee in respect of the Securities. Notwithstanding
the provisions of this Article Sixteen or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities or would permit the Company to resume making such
payments, unless and until the Trustee shall have received written notice
thereof from the Company or a holder of Senior Debt or from any trustee,
fiduciary or agent therefor in accordance with Section 105; and, prior to the
receipt of any such written notice, the Trustee, subject to TIA Sections
315(a) through 315(d), shall be entitled in all respects to assume that no
such facts exist; provided, however, that, if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal
of (and premium, if any) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
(b) Subject to TIA Sections 315(a) through 315(d), the
Trustee shall be entitled to rely on the delivery to it of a written notice by
a Person representing himself to be a holder of Senior Debt (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee, fiduciary or agent therefor). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article Sixteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
<PAGE>
97
SECTION 1610. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
SECTION 1611. Rights of Trustee As a Holder of Senior Debt;
Preservation of Trustees Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Sixteen with respect to any Senior
Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article Sixteen shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
606.
SECTION 1612. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article Sixteen shall in such case (unless the
context otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if
such Paying Agent were named in this Article Sixteen in addition to or in
place of the Trustee; provided, however, that Section 1611 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1613. No Suspension of Remedies.
Nothing contained in this Article Sixteen shall limit the
right of the Trustee or the Holders of Securities to take any action to
accelerate the maturity of the Securities pursuant to Article Five or to
pursue any rights or remedies hereunder or under applicable law.
<PAGE>
98
SECTION 1614. Trustee Not Fiduciary for Holders of Senior
Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article Sixteen
or otherwise. The Trustee's duties with respect to holders of Senior Debt are
limited to those specifically set forth in this Indenture, and no implied
covenants or obligations shall be construed by any provision hereof.
SECTION 1615. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held in
trust under Article Fourteen hereof by the Trustee (or other qualifying
trustee) and which were deposited in accordance with the terms of Article
Fourteen hereof and not in violation of Section 1603 hereof for the payment of
principal of (and premium, if any) and interest on the Securities shall not be
subordinated to the prior payment of any Senior Debt or subject to the
restrictions set forth in this Article Sixteen, and neither the Trustee nor
the Holders shall be obligated to pay over any such amount to the Company or
any holder of Senior Debt or any other creditor of the Company.
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
Indenture.
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99
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
COMPLETE MANAGEMENT, INC.
By: _____________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By: _____________________________
Name:
Title:
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States persons(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise Complete
Management, Inc. or its agent that such financial institution will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the
owner is a United States or foreign financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), this is to
further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-1-1
<PAGE>
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$]__________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a Permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the 15th
day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$]__________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such financial institution has agreed, on its own behalf or through its agent,
that we may advise Complete Management, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to
the further effect, that financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-1
<PAGE>
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any
portion of the temporary global Security representing the above-captioned
Securities excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as applicable]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euroclear System]
[Cedel]
By __________________________________
A-2-2
<PAGE>
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, New York 10022
November 12, 1997
Board of Directors
Complete Management, Inc.
254 West 31st Street
New York, New York 10001
Dear Sirs:
We are acting as counsel for Complete Management, Inc. (the
"Company") in connection with the Registration Statement on Form S-3 No.
333-35003 (the Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
relating to the offering from time to time, as set forth in the prospectus
contained in the Registration Statement (the "Prospectus") and as to be set
forth in one or more supplements to the Prospectus (each such supplement, a
"Prospectus Supplement") of the Company's (i) debt securities (the "Debt
Securities"), (ii) preferred shares (the "Preferred Shares"), (iii) Preferred
Shares represented by depositary shares (the "Depositary Shares") and (iv)
common shares (the "Common Shares") with an aggregate issue price of up to
$200,000,000. The Debt Securities, the Preferred Shares, the Depositary Shares
and the Common Shares are collectively referred to as the "Securities".
The Debt Securities will be issued in one or more series and may be
either senior debt securities (the "Senior Securities") issued pursuant to an
Indenture (the "Senior Indenture") between the Company and The Chase Manhattan
Bank as trustee (the "Senior Trustee"), or subordinated debt securities (the
"Subordinated Securities") issued pursuant to an Indenture (the "Subordinated
Indenture") between the Company and The Chase Manhattan Bank, trustee (the
"Subordinated Trustee"). The Depositary Shares will be issued under one or
more deposit agreements (the "Deposit Agreements"), each to be between the
Company and a financial institution identified therein as the depositary (the
"Depositary").
We are familiar with the corporate proceedings of the Company to date
with respect to the proposed issuance and sale of the Securities, including
resolutions of the Board of Directors of the Company (the "Resolutions")
authorizing the Indentures and the issuance, offering and sale of the
Securities and we have examined such corporate records of the Company and such
other documents and certificates as we have deemed necessary as a basis for
the opinions hereinafter expressed.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
<PAGE>
1. The Senior Indenture has been duly authorized and, when executed
and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the Senior Trustee, will constitute a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its terms.
2. The Senior Securities have been duly authorized and, when the
final terms thereof have been duly established and approved and when duly
executed by the Company, in each case pursuant to the authority granted in the
Resolutions, and authenticated by the Senior Trustee in accordance with the
Senior Indenture and delivered to and paid for by the purchasers thereof, will
constitute valid and legally binding obligations of the Company entitled to
the benefits of the Senior Indenture.
3. The Subordinated Indenture has been duly authorized and, when
executed and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the Subordinated Trustee, will constitute a valid and legally binding
instrument of the Company enforceable against the Company in accordance with
its terms.
4. The Subordinated Securities have been duly authorized and, when
the final terms thereof have been duly established and approved and when duly
executed by the Company, in each case pursuant to the authority granted in the
Resolutions, and authenticated by the Subordinated Trustee in accordance with
the Subordinated Indenture and delivered to and paid for by the purchasers
thereof, will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Subordinated Indenture.
5. The Preferred Shares have been duly authorized and, when the final
terms thereof have been duly established and approved and certificates
representing such shares have been duly executed by the Company, in each case
pursuant to the authority granted in the Resolutions, and delivered to and
paid for by the purchasers thereof, and when all corporate action necessary
for issuance of such shares has been taken, including the adoption and filing
with the Secretary of State of the State of New York of a Certificate of
Designation, such shares will be validly issued, fully paid and
non-assessable.
6. The Depositary Shares have been duly authorized and, when the
final terms thereof have been duly established and approved, in each case
pursuant to the authority granted in the Resolutions, and when the depositary
receipts representing the Depositary Shares (the "Depositary Receipts") have
been duly executed by the Depositary and delivered to and paid for by the
purchasers thereof, and when all corporate action necessary for issuance of
such Depositary Shares and the underlying Preferred Shares has been taken,
such Depositary Shares will be validly issued and will entitle the holders
thereof to the rights specified in the Depositary Receipts and the Deposit
Agreement.
7. The Common Shares have been duly authorized and, when all
corporate action necessary for the issuance of such Common Shares has been
<PAGE>
taken and when the Common Shares have been delivered against payment therefor,
the Common Shares will be validly issued, fully paid and non-assessable.
8. The Common Shares issuable upon conversion of any issue of
Preferred Shares have been duly authorized and, when all corporate action
necessary for the issuance of such Common Shares has been taken and when the
Common Shares have been delivered upon conversion of such Preferred Shares,
such Common Shares will be validly issued, fully paid and non-assessable.
9. The Common Shares issuable upon conversion of any issue of Debt
Securities have been duly authorized and, when all corporate action necessary
for the issuance of such Common Shares has been taken and when the Common
Shares have been delivered upon conversion of such Debt Securities, such
Common Shares will be validly issued, fully paid and non-assessable.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (iii) provisions of law
that require that a judgment for money damages rendered by a court in the
United States be expressed only in United States dollars.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ MORSE, ZELNICK, ROSE & LANDER LLP
<PAGE>
Exhibit 12
----------
<TABLE>
<CAPTION>
Ratio of Earnings to Fixed Charges
----------------------------------
(in thousands)
For the Years Ended December 31, Nine Months Ended September 30,
----------------------------------------------- -------------------------------
1993 1994 1995 1996 1996 1997
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Pre-tax Earnings $ 1,897 $ 5,367 $ 6,088 $ 10,293 $ 7,528 $ 10,572
Add back:
Interest expense -- -- 46 2,740 1,829 4,876
Amortization of debt issuance costs -- -- -- 392 208 844
Operating leases -- -- -- 29 238 988
------- ------- ------- -------- ------- --------
Fixed charges -- -- 46 3,161 2,275 6,708
------- ------- ------- -------- ------- --------
$ 1,897 $ 5,367 $ 6,134 $ 13,454 $ 9,803 $ 17,280
======= ======= ======= ======== ======= ========
Ratio of earnings to fixed charges N/A N/A 133.35 4.26 4.31 2.58
------- ------- ------- -------- ------- --------
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants we hereby consent to the incorporation by
reference in this amendment no. 1 to the registration statement on Form S-3 of
our reports dated March 6, 1997 included (or incorporated by reference) in
Complete Management, Inc.'s Form 10-K for the year ended December 31, 1996 and
to all references to our Firm included in this amendment no. 1 to the
registration statement on Form S-3.
/s/ Arthur Andersen LLP
New York, New York
November 12, 1997
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 to be filed by Complete Management, Inc. of our report
dated March 12, 1997 on the financial statements of Consumer Health Network,
Inc. as of December 31, 1996 and 1995, and for the years then ended. We also
consent to the reference to our firm under the caption "Experts" in the
Prospectus of the Registration Statement.
/s/ J. H. COHN LLP
Roseland, New Jersey
November 12, 1997
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
COMPLETE MANAGEMENT, INC.
(Exact name of obligor as specified in its charter)
New York 11-3149119
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
254 West 31st Street
New York, New York 10001-2813
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Debt Securities
(Title of the indenture securities)
--------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference. On
July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving
corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 29th day
of September, 1997.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
------------------------
L. O'Brien
Senior Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance
with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................ $ 13,892
Interest-bearing balances ................................ 4,282
Securities:
Held to maturity securities ................................... 2,857
Available for sale securities ................................. 34,091
Federal Funds sold and securities purchased under
agreements to resell ..................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ....... $124,827
Less: Allowance for loan and lease losses ...... 2,753
Less: Allocated transfer risk reserve .......... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................... 122,061
Trading Assets ................................................ 56,042
Premises and fixed assets (including capitalized
leases) .................................................. 2,904
Other real estate owned ....................................... 306
Investments in unconsolidated subsidiaries and
associated companies ..................................... 232
Customers' liability to this bank on acceptances
outstanding .............................................. 2,092
Intangible assets ............................................. 1,532
Other assets .................................................. 10,448
--------
TOTAL ASSETS .................................................. $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ...................................... $ 91,249
Noninterest-bearing .......................... $ 38,157
Interest-bearing ............................. 53,092
---------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ................................................ 70,192
Noninterest-bearing .......................... $ 3,712
Interest-bearing ............................. 66,480
Federal funds purchased and securities sold under agree-
ments to repurchase ........................................... 35,185
Demand notes issued to the U.S. Treasury ...................... 1,000
Trading liabilities ........................................... 42,307
OtherBorrowed money (includes mortgage indebtedness and
obligations under calitalized leases):
With a remaining maturity of one year or less ............ 4,593
With a remaining maturity of more than one year
through three years ............................... 260
With a remaining maturity of more than three years ...... 146
Bank's liability on acceptances executed and outstanding ...... 2,092
Subordinated notes and debentures ............................. 5,715
Other liabilities ............................................. 11,373
TOTAL LIABILITIES ............................................. 264,112
---------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus ................. 0
Common stock .................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ..... 10,283
Undivided profits and capital reserves ........................ 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities .............................. (193)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL .......................................... 16,597
---------
TOTAL LIABILITIES AND EQUITY CAPITAL .......................... $ 280,709
=========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with
the instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
