<PAGE> 1
As filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. HOME CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10707 Clay Road
Houston, Texas 77041
(713) 877-2311
(Address, including zip code, and
telephone number, including area
code, of registrant's principal
executive offices)
ROBERT J. STRUDLER
Chairman and Co-Chief Executive Officer
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77041
(713) 877-2311
(Name, address, including zip
code, and telephone number,
including area code, of agent for
service)
Copy to:
STEPHEN C. KOVAL, ESQ.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
<PAGE> 2
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
as determined by market conditions.
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 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 from 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. ___
<TABLE>
<CAPTION>
Calculation of Registration Fee
=============== =============== =============== ================ =============
Title of each Amount to Proposed Proposed Amount
class of be maximum maximum of
securities registered offering price aggregate registration
to be per unit offering fee
registered price
=============== =============== =============== ================ =============
<S> <C> <C> <C> <C>
Senior, Senior $150,000,000(1) 100% (1) $150,000,000 (1) $41,700 (2)
Subordinated
and/or
Subordinated
Debt
Securities,
Various
Series
=============== =============== =============== ================ =============
</TABLE>
(1) Estimated solely for purposes of determining the
registration fee. If any such Debt Securities are issued
at an original issue discount, then the amount to be
registered shall be in such greater principal amount as
shall result in an aggregate initial offering price of up
to $150,000,000.
<PAGE> 3
(2) An additional filing fee of $7,375 was previously paid
for $25,000,000 of unsold Debt Securities registered
under the Registrant's Registration Statement No.
333-46849.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
included herein contains a combined prospectus that also relates to a total
of $25,000,000 of Debt Securities of the Registrant, previously registered
under the Registrant's Registration Statement No. 333-46849 (which was
declared effective on March 2, 1998) and not issued. This Registration
Statement constitutes Post-Effective Amendment No. 1 to the Registrant's
Registration Statement on Form S-3 No. 333-46849 pursuant to which the
total amount of unsold Debt Securities previously registered under the
Registrant's Registration Statement on Form S-3 No. 333-46849 may be
offered and sold as Debt Securities, without limitation as to class,
together with the Debt Securities registered hereunder, through the use of
the combined prospectus included herein relating to Debt Securities. In the
event that any of such previously registered Debt Securities are offered
and sold prior to the effective date of this Registration Statement, the
amount of such Debt Securities will not be included in any prospectus
hereunder.
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 the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 4
SUBJECT TO COMPLETION, DATED MARCH 31, 1999
$175,000,000
U.S. Home Corporation
Debt Securities
----------
We may offer unsecured general obligations of our company in the form
of senior debt securities, senior subordinated debt securities or
subordinated debt securities. Senior debt securities, senior
subordinated debt securities or subordinated debt securities will
consist of bonds, debentures, notes and/or other unsecured evidences
of indebtedness. For each type of debt securities, the price and terms
will be determined at or prior to the time of sale.
We will provide the specific terms of each series of debt securities
in supplements to this prospectus. We may not use this prospectus to
sell debt securities unless we also give prospective investors a
supplement to this prospectus. You should read this prospectus and the
supplements carefully before you invest.
Each prospectus supplement will describe the risk factors associated
with debt securities or applicable to us.
We may offer the debt securities directly to one or more purchasers,
through agents designated from time to time by us, or to or through
underwriters or dealers. The names of these parties, any debt
securities to be purchased by or through these parties, the
compensation of these parties and other special terms in connection
with the offering and sale of these debt securities will be detailed
in the supplement to this prospectus. See "Plan of Distribution."
----------
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the
offer or sale is not permitted.
----------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities
or determined if this prospectus or any accompanying prospectus
supplement is truthful or complete. Any representation to the contrary
is a criminal offense.
----------
The date of this prospectus is March __, 1999
<PAGE> 5
TABLE OF CONTENTS
Page
----
About This Prospectus 3
Where You Can Find More Information 3
Special Note on Forward-looking Statements 4
The Company 5
Use of Proceeds 5
Consolidated Ratio of Earnings to Fixed Charges 6
Description of Debt Securities 6
Plan of Distribution 26
Legal Matters 27
Experts 28
<PAGE> 6
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission utilizing a "shelf"
registration process. Under this shelf registration process, we may sell
any combination of the debt securities described in this prospectus in one
or more offerings up to a total dollar amount of $175,000,000. This
prospectus provides you with a general description of the debt securities
we may offer. Each time we sell debt securities, we will provide a
prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or
change information contained in this prospectus. It is important for you to
consider the information contained in this prospectus and any prospectus
supplement together with any additional information described under the
next heading WHERE YOU CAN FIND MORE INFORMATION in making your investment
decision.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. Our SEC filings are available to the
public over the Internet at our web site at http://www.ushome.com and the
SEC's web site at You may also read and copy any document we file at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the SEC's public reference room. Our common stock is listed on
the New York Stock Exchange under the trading symbol "UH". You can also
obtain information about us from the New York Stock Exchange at 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we
file with them. This means that we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus and information that we
file later with the SEC will automatically update and supercede this
information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934 from the date these documents are
filed until we sell all of the debt securities.
Our Annual Report on Form 10-K for the year ended December 31, 1998;
and
Our Current Report on Form 8-K dated February 16, 1999.
You may request a copy of these filings at no cost, by writing or
calling us at the following address:
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77041
(713) 877-2311
Attention: Kelly F. Somoza, Vice President
of Investor Relations
<PAGE> 7
You should rely only on the information incorporated by reference
or provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or
any prospectus supplement is accurate as of any date other than the date on
the front of those documents.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
We include this disclosure to take advantage of the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995.
This prospectus (and any prospectus supplement) and the documents
incorporated by reference in the prospectus (and in any prospectus
supplement) include "forward-looking statements" within the meaning of
section 27A of the Securities Act of 1933, and section 21E of the
Securities Exchange Act of 1934. Forward-looking statements may be
identified by the use of words like "believes," "intends," "expects,"
"may," "will," "should" or "anticipates," or the negative equivalents of
those words or comparable terminology, and by discussions of strategies
that involve risks and uncertainties.
Given the risks and uncertainties of our business, actual results
may differ materially from those expressed or implied by forward-looking
statements. In addition, we base forward-looking statements on assumptions
about future events, which may not prove to be accurate. In light of these
risks, uncertainties and assumptions, you should be aware that the
forward-looking events described in this prospectus (and in any prospectus
supplement) and the documents incorporated by reference in this prospectus
(and in any prospectus supplement) may not occur.
Our forward-looking statements regarding the results of our
operations and our financial condition are subject to risks, uncertainties
and assumptions, including the following:
General economic and business conditions, the level and direction of
interest rates and the level of consumer confidence have a significant
impact on the willingness and ability of purchasers to enter into
contracts for homes and to consummate purchases of homes under
contract, as well as on the performance of U.S. Home Mortgage
Corporation, our principal subsidiary.
The development of many of our communities, particularly in our
retirement, active adult and intergenerational communities, involves
a lengthy and complex series of events including land purchase and,
development, regulatory compliance, capital availability, and marketing
and sales, any of which can materially affect the financial results for
a community.
<PAGE> 8
We are in a highly competitive and fragmented industry. This places
constant pressure on the availability of suitable land, our pricing
(including our ability to respond to increases in prices from our
suppliers), quality and marketing and particularly challenges us
upon our entry into new geographic markets.
We face numerous regulatory hurdles in our development efforts, such
as laws and regulations regarding zoning, environmental protection,
infrastructure requirements, building design and construction, density
and rate of development.
Our access to capital sufficient to fund our activities is affected by
our high level of debt and by the willingness of the capital markets
and banks to absorb our equity and debt offerings.
We may encounter other contingencies, including labor shortages, work
stoppages, product liability, litigation, natural risks (including
floods or hurricanes) and other factors over which we have little or
no control.
We cannot assure you that our future results, levels of activity
and achievements will occur as we expect, and neither we nor any other
person assumes responsibility for the accuracy and completeness of our
forward-looking statements. We have no obligation to update or revise any
forward-looking statement, whether as a result of new information, future
events or otherwise.
THE COMPANY
We were organized in 1954 and incorporated in the State of
Delaware in 1959. We have built more than 283,000 homes and we have been
among the ten largest single-family on-site homebuilders in the United
States for more than 20 years. We currently build and sell homes in more
than 230 new home communities, covering 33 market areas in 12 states. We
conduct substantially all of our homebuilding business as U.S. Home
Corporation.
We offer a wide variety of home designs which are targeted to
appeal to the affordable, move-up and retirement and active-adult
homebuyers. In each of our markets, our primary strategy is to build
quality homes, utilizing our Zero Defect Program to offer prospective home
buyers a high level of new home value. We believe that many home purchasers
compare homes on the basis of location, perceived quality and dollars of
purchase price per square foot of living area. As a result, we attempt to
purchase land and lots in popular growth corridors, maintain high quality
standards and design homes to maximize living space.
<PAGE> 9
Through U.S. Home Mortgage Corporation, our mortgage banking
subsidiary, we provide mortgage banking services to our customers. U.S.
Home Mortgage Corporation originates, processes and sells mortgages to
third-party investors. U.S. Home Mortgage Corporation sells the mortgages
and related servicing rights that it originates to investors. U.S. Home
Mortgage Corporation does not retain or service the mortgages that it
originates.
When we use the words "Company," "we," "our," "ours," and "us" we
are only referring to U.S. Home Corporation, not to any of our
subsidiaries, unless we state otherwise.
Our main executive offices are located at 10707 Clay Road, Houston,
Texas 77041 (telephone: (713) 877-2311).
USE OF PROCEEDS
Unless we tell you otherwise in an accompanying prospectus
supplement, we will use the net proceeds from the sale of the debt
securities for general corporate purposes.
CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
This table sets forth our consolidated ratio of earnings to fixed
charges for the periods indicated:
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
----------------------------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings
to fixed charges
(unaudited) (1) 2.51 2.57 2.44 2.66 2.55
- -------------------
</TABLE>
(1) The ratio of earnings to fixed charges is calculated by dividing
earnings by fixed charges. For this purpose, "fixed charges" means the
sum of (a) interest expensed and capitalized, (b) amortized premium,
discount and capitalized expenses related to the indebtedness, (c) an
estimate of the interest included in rental expense and (d) the
proportionate share of the items described in clauses (a), (b) and (c)
of this sentence that relates to our unconsolidated affiliates. For
this purpose, "earnings" means (x) the sum of (i) pretax income from
continuing operations, (ii) fixed charges and (iii) previously
capitalized interest charged to cost of sales minus (y) interest
capitalized. These computations include U.S. Home Corporation, and our
subsidiaries, and 50% or less owned companies.
<PAGE> 10
DESCRIPTION OF DEBT SECURITIES
When we use the term "Senior Debt Securities," we mean our
unsecured senior debt securities covered by this prospectus. When we use
the term "Senior Subordinated Debt Securities" we mean our senior
subordinated debt securities covered by this prospectus. When we use the
term "Subordinated Debt Securities," we mean our subordinated debt
securities covered by this prospectus. When we use the term "Debt
Securities," we mean collectively the Senior Debt Securities, Senior
Subordinated Debt Securities and Subordinated Debt Securities. The Debt
Securities will be our direct unsecured general obligations, unless we tell
you otherwise in the applicable prospectus supplement. The Debt Securities
will be Senior Debt Securities, Senior Subordinated Debt Securities or
Subordinated Debt Securities.
Senior Debt Securities may be issued from time to time in series
under an indenture (the "Senior Indenture") between the Company and IBJ
Whitehall Bank & Trust Company, the Trustee. See "Concerning the Trustee."
Senior Subordinated Debt Securities may be issued from time to time in
series under an indenture (the "Senior Subordinated Indenture") between the
Company and the Trustee. Subordinated Debt Securities may be issued from
time to time in series under an indenture (the "Subordinated Indenture")
between the Company and the Trustee. We sometimes refer to the Senior
Indenture, the Senior Subordinated Indenture and the Subordinated Indenture
individually as the "Indenture" and collectively as the "Indentures." Forms
of the Senior Indenture, Senior Subordinated Indenture and Subordinated
Indenture are filed as exhibits to the Registration Statement of which this
prospectus is a part. Unless specifically stated otherwise, all references
below to an Article or Section refer to that Article or Section in all of
the Indentures. The Indentures will be subject to and governed by the Trust
Indenture Act of 1939, as amended (the "TIA"). When we use the term
"Offered Debt Securities" we mean the Debt Securities offered by this
prospectus and the applicable prospectus supplement. As used under this
caption, unless the context otherwise requires, "Offered Debt Securities"
shall mean the Debt Securities offered by this prospectus and the
accompanying prospectus supplement; "Offered Senior Debt Securities" shall
mean the Senior Debt Securities so offered; "Offered Senior Subordinated
Debt Securities" shall mean the Senior Subordinated Debt securities so
offered; and "Offered Subordinated Debt Securities" shall mean the
Subordinated Debt Securities so offered.
We have summarized selected provisions of the Indentures below.
The summary is not complete and is subject to, and qualified in its
entirety by reference to, all of the provisions of the Indentures,
including the definitions therein of certain capitalized terms used in this
prospectus. You should read the Indentures for provisions that may be
important to you. Capitalized terms used but not defined herein have the
meanings specified in the Indentures. The following sets forth certain
general terms and provisions of the Debt Securities to which any prospectus
supplement may relate. We will describe further terms of the Offered Debt
Securities in a prospectus supplement. Except (i) with respect to the
provisions relating to subordination and (ii) to the extent set forth in a
prospectus supplement with respect to a particular series of Debt
Securities, the Indentures are substantially identical. See "Status of Debt
Securities" and "Discharge, Defeasance and Covenant Defeasance."
<PAGE> 11
General
Each Indenture will be used for the issuance of Debt Securities in
one or more series. The Debt Securities will be our unsecured senior,
senior subordinated or subordinated obligations, as we describe in the
accompanying prospectus supplement. Unless we tell you otherwise in the
accompanying prospectus supplement or below, the Indentures will not
restrict our or our subsidiaries' businesses or operations, limit our or
our subsidiaries' indebtedness or prohibit us or our subsidiaries from
incurring any liens, charges or other encumbrances on any of our properties
or other assets.
Terms
We will describe specific terms relating to any series of Offered
Debt Securities in a prospectus supplement or prospectus supplements. These
terms will include the following:
The title of the Offered Debt Securities;
Whether the Offered Debt Securities are Senior Debt Securities, Senior
Subordinated Debt Securities or Subordinated Debt Securities;
The aggregate of, and any limit on, the principal amount of Offered
Debt Securities;
The person to whom we will pay interest on an Offered Debt Security,
if other than the person in whose name the Offered Debt Security is
registered on the record date for the payment of such interest;
The date or dates, or how we will determine such date or dates, on
which we will pay the principal of the Offered Debt Security;
The rate or rates at which the Offered Debt Securities will bear
interest, if any, or how we will determine such interest rate or
rates;
The date or dates from which interest, if any, will accrue on the
Offered Debt Securities, or how we will determine such date or dates,
the dates when we will pay the interest on the Offered Debt Securities
and the record date, if any, for the payment of such interest on such
interest payment date or how we will determine such date or dates;
How we will calculate interest on the Offered Debt Securities, if
other than on the basis of actual days elapsed over a 365 or 366-day
year;
The place or places, if any, other than or in addition to New York,
New York, where we will pay the principal and interest on Offered Debt
Securities, where you may surrender any Offered Debt Securities for
registration of transfer or for exchange and where you may serve us
with notices or demands in respect of the Offered Debt Securities and
the applicable Indenture;
<PAGE> 12
The period or periods within, the price or prices at and the terms and
conditions upon, which the Offered Debt Securities may be redeemed or
purchased, in whole or in part, at our option;
Our obligation, if any, to redeem or repurchase the Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at
the option of a holder thereof and the period or periods within which,
the prices at which and the terms and conditions upon which, Offered
Debt Securities will be redeemed or purchased, in whole or in part,
pursuant to such obligation;
The denominations in which we will issue the Offered Debt Securities,
if other than the denomination of $1,000 and any integral multiple of
$1,000;
The currency, currencies or currency units in which payment of the
principal of and interest on any Offered Debt Securities will be
payable if other than the currency of the United States and the manner
of determining the equivalent thereof in the currency of the United
States for purposes of the definition of "Outstanding" in the
applicable Indenture;
If the principal of or interest on any Offered Debt Securities is to
be payable, at our election or the election of a holder thereof, in
one or more currencies or currency units other than that or those in
which the Offered Debt Securities are stated to be payable, the
currency, currencies or currency units in which payment of the
principal of and interest on Offered Debt Securities as to which such
election is made will be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
If the amount of principal of or interest on any Offered Debt
Securities may be determined with reference to an index, the manner in
which such amounts will be determined;
If other than the principal amount of the Offered Debt Securities, the
portion of the principal amount thereof which will be payable upon
declaration of acceleration of the maturity thereof;
If we will issue Offered Debt Securities in whole or in part in the
form of one or more Global Securities (as defined), and in such case,
the Depository or Depositories (as defined) for such Global Security
or Global Securities and any circumstances other than those listed
below in which any such Global Security may be transferred to, and
registered and exchanged for Offered Debt Securities registered in the
name of, a person other than the Depository for such Global Security
or a nominee thereof and in which any such transfer may be registered;
If other than the Trustee, the identity of each paying agent and
registrar for the Offered Debt Securities;
<PAGE> 13
Any Events of Default (as defined) with respect to the Offered Debt
Securities, if not otherwise set forth under the caption "Events of
Default" or if different from those set forth herein;
Any material covenants with respect to the Offered Debt Securities, if
not listed below or if different from those listed below;
The applicability of the provisions related to discharge, defeasance
or covenant defeasance, if other than as described under the caption
"Discharge, Defeasance and Covenant Defeasance;" and
Any other material terms of the Offered Debt Securities.
None of the Indentures limits the amount of Debt Securities that
may be issued. If we denominate the purchase price of the Offered Debt
Securities in a foreign currency or currencies or a foreign currency unit
or units or if we pay the principal of, and interest, if any, on any series
of Offered Debt Securities in a foreign currency or currencies or a foreign
currency unit or units, we will describe any restrictions, elections,
general tax considerations, specific terms and other information with
respect to such Offered Debt Securities and such foreign currency or
currencies or foreign currency unit or units in the applicable prospectus
supplement.
If it is so provided in the applicable prospectus supplement, we
may issue the Debt Securities at a discount from their principal amount. We
will describe, in the applicable prospectus supplement, all Federal income
tax considerations and other special considerations applicable to any such
Offered Debt Securities.
Global Securities
Unless we tell you otherwise in the applicable prospectus
supplement, we will issue the Offered Debt Securities as fully-registered
securities in the form of one or more global securities (each a "Global
Security") registered in the name of a nominee of The Depository Trust
Company (the "Depository"). We will issue one fully registered Global
Security certificate for each issue of the global securities, each in the
aggregate principal amount of such issue, and we will deposit it with the
Depository. If, however, the aggregate principal amount of any issue of the
global securities exceeds $200 million, one certificate will be issued with
respect to each $200 million of principal amount and an additional
certificate will be issued with respect to any remaining principal amount
of such issue. We will tell you the identity of the nominee appointed by
the Depository, if other than "Cede & Co.," in the accompanying prospectus
supplement. The Global Security will be issued in a denomination or
aggregate denomination equal to the portion of the aggregate principal
amount of the outstanding Debt Securities of the series represented by such
Global Security. Except as described herein or in the applicable prospectus
supplement, Debt Securities will not be issued in definitive form.
<PAGE> 14
We will describe the terms of the specific depositary arrangement
with respect to any portion of a series of Offered Debt Securities to be
represented by a Global Security in the applicable prospectus supplement,
if they differ from the description below. We expect the following
provisions to apply to depositary arrangements.
Upon the issuance of a Global Security, the Depository or its
nominee will credit, on its book-entry registration and transfer system,
the accounts of persons holding through it with the respective principal
amounts of the Debt Securities represented by such Global Security. Such
accounts will be designated by the underwriter or agents, if any, with
respect to Debt Securities or by us, if the Offered Debt Securities are
offered and sold directly by us. Ownership of beneficial interests in a
Global Security will be limited to persons that have accounts with the
Depository ("participants") or persons that may hold interests through
participants. Ownership of beneficial interests by participants in a Global
Security will be shown on, and the transfer of that ownership interest will
be effected only through, records maintained by the Depository 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 that ownership interest through such participant will be
effected only through, records maintained by such participant. Beneficial
owners of the Global Security will not receive written confirmation from
the Depository of their purchase of the Global Security, but beneficial
owners are expected to receive written confirmations providing details of
the transaction, as well as periodic statements of their holdings, from the
participant through which the beneficial owner entered into the
transaction. Transfers of ownership interest in the Global Security are to
be accomplished by entries made on the books of participants acting on
behalf of beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in the Global Security,
except in the event that use of the book-entry system for the Global
Security is discontinued. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities
in definitive form. The foregoing and such laws may impair the ability to
transfer beneficial interests in a Global Security.
To eliminate any confusion with transfers, when a participant
deposits a Global Security with the Depository, this deposit is registered
in the name of the Depository's nominee. This does not change the
beneficial ownership. The Depository has no knowledge of the actual
beneficial owners of the Global Security; the Depository's records reflect
only the identity of the direct participants (which include securities
brokers and dealers, banks, trust companies, clearing corporations, and
certain other organizations) to whose accounts the Global Security is
registered, which may or may not be the beneficial owners. The participants
will remain responsible for keeping account of their holdings on behalf of
their customers.
<PAGE> 15
Unless we tell you otherwise in the applicable prospectus
supplement, payment of principal, premium, if any, and interest, if any, on
Debt Securities represented by any Global Security will be made to the
Depository or its nominee, as the sole registered holder of the Debt
Securities represented thereby for all purposes under the applicable
Indenture. We will not nor will any of our agents, the Trustee, any paying
agent, any registrar for the Offered Debt Securities or any underwriter
with respect to Offered Debt Securities have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security representing any Debt Securities or for maintaining, supervising
or reviewing any of the Depository's records relating to such beneficial
ownership interests.
We expect that when the Depository receives any payment of
principal, premium or interest on any Global Security, it will immediately
credit, on its book-entry registration and transfer system, the accounts of
participants with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such Global Security as
shown on the records of the Depository. We also expect that payments by
participants to owners of beneficial interests in a Global Security held
through such participants will be governed by standing instructions and
customary practices as is now the case with securities held for customer
accounts in bearer form or registered in "street name," and such payments
will be the sole responsibility of such participants. However, we have no
control over the practices of the Depository and/or the participants and
there can be no assurances that these practices will not be changed.
Unless we tell you otherwise in the applicable prospectus
supplement, a Global Security may not be transferred, except as a whole by
the Depository for such Global Security, to a nominee of such Depository or
by a nominee of such Depository to such Depository or another nominee of
such Depository or by such Depository or any such nominee to a successor of
such Depository or a nominee of such successor. If the Depository is at any
time unwilling or unable to continue as depositary and a successor
depositary is not appointed by us or the Depository within 90 days, we will
issue Debt Securities in definitive form in exchange for the Global
Security. In addition, we (and in certain circumstances, the Depository)
may determine not to have the Debt Securities represented by the Global
Security and, in such event, we will issue Debt Securities in definitive
form in exchange for the Global Security. In either instance, an owner of a
beneficial interest in the Global Security will be entitled to have Debt
Securities equal in principal amount to such beneficial interest registered
in its name and will be entitled to physical delivery of such Debt
Securities in definitive form. Unless we tell you otherwise, in the
applicable prospectus supplement, Debt Securities so issued in definitive
form will be issued in denominations of $1,000 and integral multiples
thereof and will be issued in registered form only, without coupons. Unless
we tell you otherwise in the applicable prospectus supplement, principal
and interest, if any, on the Debt Securities will be payable, and the Debt
Securities may be presented for registration of transfer or exchange, at
the offices of the Trustee. If (i) we notify the Trustee in writing that
<PAGE> 16
the Depository is no longer willing or able to act as a depositary and we
are unable to locate a qualified successor within 90 days, (ii) we, at our
option, notify the Trustee in writing that we elect to cause the issuance
of Offered Debt Securities in certificated form under the applicable
Indenture or (iii) an Event of Default has occurred and is continuing,
then, upon surrender by the Depository of the applicable Global Securities,
certificated Offered Debt Securities will be issued to each person whom the
Depository identifies as a beneficial owner of the Offered Debt Securities
represented by such Global Securities.
So long as the Depository for a Global Security, or its nominees,
is the registered owner of such Global Security, such Depository or such
nominee, as the case may be, will be considered the sole registered holder
of the Debt Securities represented by such Global Security for all purposes
of receiving payment on the Debt Securities, receiving notices and for all
other purposes under the Indenture and the Debt Securities. Beneficial
interests in Debt Securities will be evidenced only by, and transfers
thereof will be effected only through, records maintained by the Depository
and its participants. Except as provided above, owners of beneficial
interests in a Global Security will not be entitled to and will not be
considered the registered holders thereof for any purposes under the
Indentures. Accordingly, any such person owning a beneficial interest in
such a Global Security must rely on the procedures of the Depository, and,
if any 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 registered holder under the Indentures. The Indentures provide
that the Depository may grant proxies and otherwise authorize participants
to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a registered holder is entitled to
give or take under the Indentures. We understand that under existing
industry practices, in the event that we request any action of registered
holders or that an owner of a beneficial interest in such a Global Security
desires to give or take any action which a registered holder is entitled to
give or take under the Indenture, the Depository would authorize the
participants holding the relevant beneficial interest to give or take such
action and such participants would authorize beneficial owners owning
through such participants to give or take such action or would otherwise
act upon the instructions of beneficial owners owning through them.
The Depository has provided us with the following information: The
Depository is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code,
and a "clearing agency" registered under the Securities Exchange Act of
1934. The Depository was created to hold the securities of its participants
and to facilitate the clearance and settlement of securities transactions
among its participants in such securities through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
<PAGE> 17
physical movement of securities certificates. The Depository's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom (and/or their
representatives) own the Depository. Access to the Depository's book-entry
system is also available to others, such as banks, brokers, dealers and
trust companies, that clear through or maintain a custodial relationship
with a participant, either directly or indirectly. The rules applicable to
the Depository and its participants are on file with the SEC.
The above-mentioned information concerning the Depository and its
book-entry system has been obtained from sources that we believe to be
reliable, but we take no responsibility for its accuracy.
Status of Debt Securities
The Senior Debt Securities will be our general unsecured and
unsubordinated obligations and will rank equal to all of our other
unsecured and unsubordinated indebtedness. All series of Senior Debt
Securities which we may issue under the Senior Indenture will be equal in
right of payment with
each other,
indebtedness under our principal credit facility,
our 7.95% senior notes due 2001, which we issued in the original
principal amount of $75,000,000 under an Indenture, dated as of
February 16, 1996, between us and IBJ Whitehall Bank & Trust Company
(formerly known as IBJ Schroder Bank & Trust Company), as trustee (the
"1996 Senior Notes"),
our 8.25% senior notes due 2004, which we issued in the original
principal amount of $100,000,000 under an Indenture, dated as of
August 28, 1997, between us and IBJ Whitehall Bank & Trust Company
(formerly known as IBJ Schroder Bank & Trust Company), as trustee (the
"1997 Senior Notes"), and
our 7-3/4% senior notes due 2005, which we issued in the original
principal amount of $100,000,000 under an Indenture, dated as of
August 28, 1997, between us and IBJ Whitehall Bank & Trust Company
(formerly known as IBJ Schroder Bank & Trust Company), as trustee (the
"1998 Senior Notes"), and
any additional senior debt of ours would rank equally with the Senior
Debt Securities.
<PAGE> 18
The Senior Debt Securities we will offer with this prospectus
will be senior in right of payment to
our 8.88% senior subordinated notes due 2007, which we issued in the
original principal amount of $125,000,000 under an Indenture, dated as
of August 28, 1997, between us and IBJ Whitehall Bank & Trust Company
(formerly known as IBJ Schroder Bank & Trust Company), as trustee (the
"1997 Senior Subordinated Notes"), and
our 8.75% senior subordinated notes due 2009, which we issued in the
original principal amount of $125,000,000 under an Indenture, dated as
of February 19, 1999, between us and IBJ Whitehall Bank & Trust
Company (formerly know as IBJ Schroder Bank & Trust Company) as
trustee (the "1999 Senior Subordinated Notes").
The Senior Subordinated Debt Securities will be our general
unsecured obligations and will be subordinate and junior in right of
payment, to the extent and in the manner to be set forth in the Senior
Subordinated Indenture, to the prior payment in full in cash (or cash
equivalents) of amounts then due on our "Senior Indebtedness." All series
of Senior Subordinated Debt Securities which we may issue under the Senior
Subordinated Indenture will rank on parity in right of payment with
each other,
the 1997 Senior Subordinated Notes, and
the 1999 Senior Subordinated Notes.
Unless we tell you otherwise in the applicable prospectus
supplement, the Senior Subordinated Indenture will define our "Senior
Indebtedness" to mean the principal of (and premium, if any), and interest
on (including, without limitation, interest accruing subsequent to the
filing of a petition under applicable Bankruptcy Law (as defined in the
Senior Subordinated Indenture) or the appointment of a Custodian (as
defined in the Senior Subordinated Indenture)),
(i) any and all of our indebtedness and obligations (including
indebtedness of others guaranteed by us), whether or not contingent
and whether or not outstanding on the Issue Date (as defined in the
Senior Subordinated Indenture) or thereafter created, incurred or
assumed (including, without limitation, all charges, fees, expenses
and other amounts incurred by or owing to holders of such
indebtedness), which
(a) is for money borrowed,
(b) is evidenced by any bond, note, debenture or similar instrument,
<PAGE> 19
(c) represents the unpaid balance on the purchase price of any
property, business or asset of any kind,
(d) is our obligation as lessee under any and all leases of property,
equipment or other assets required to be capitalized on our balance
sheet under generally accepted accounting principles,
(e) is our reimbursement obligation with respect to letters of credit,
(f) is our obligation with respect to an interest swap obligation or
foreign exchange agreement, or
(g) is an obligation of a party other than us secured by a lien to
which any of our properties or assets (including, without limitation,
our leasehold interests and any other of our tangible or intangible
property rights) is subject, whether or not the obligations secured
thereby shall have been assumed by us or will otherwise be our legal
liability, and
(ii) any deferrals, amendments, renewals, extensions, modifications and
refundings of any of our indebtedness or obligations of the types
referred to in clause (i) above; provided that Senior Indebtedness
will not include
(a) the Senior Subordinated Debt Securities or the Subordinated Debt
Securities,
(b) the 1997 Senior Subordinated Notes or the 1999 Senior Subordinated
Notes,
(c) any of our indebtedness or obligations (or the instrument creating
or evidencing it) which expressly provides that such indebtedness is
not superior in right of payment to the Senior Subordinated Debt
Securities, or which expressly provides that such indebtedness is
subordinate in right of payment to all of our other indebtedness
(including the Senior Subordinated Debt Securities),
(d) any of our indebtedness or obligations to any of our subsidiaries,
and
(e) any of our indebtedness or obligations incurred by us in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
The 1996 Senior Notes, the 1997 Senior Notes, the 1998 Senior
Notes, debt under our principal bank credit facility and certain other
outstanding debt of ours will constitute "Senior Indebtedness" with respect
to the Senior Subordinated Debt Securities. In addition, debt that we incur
in the future may constitute "Senior Indebtedness" with respect to the
Senior Subordinated Debt Securities.
<PAGE> 20
The Subordinated Debt Securities will be our general
unsecured obligations and will be subordinate and junior in right of
payment, to the extent and in the manner to be set forth in the
Subordinated Indenture, to the prior payment in full in cash (or cash
equivalents) of amounts then due on our "Senior Indebtedness."
Unless we tell you otherwise in the applicable prospectus
supplement, the Subordinated Indenture will define "Senior Indebtedness" of
ours to mean the principal of (premium, if any), and interest on
(including, without limitation, interest accruing subsequent to the filing
of a petition under applicable Bankruptcy Law (as defined in the
Subordinated Indenture) or the appointment of a Custodian (as defined in
the Subordinated Indenture)),
(i) any and all of our indebtedness and obligations (including
indebtedness of others guaranteed by us), whether or not contingent
and whether or not outstanding on the Issue Date (as defined in the
Subordinated Indenture) or thereafter created, incurred or assumed
(including, without limitation, all charges, fees, expenses and other
amounts incurred by or owing to holders of such indebtedness), which
(a) is for money borrowed,
(b) is evidenced by any bond, note, debenture or similar instrument,
(c) represents the unpaid balance on the purchase price of any
property, business or asset of any kind,
(d) is our obligation as lessee under any and all leases of property,
equipment or other assets required to be capitalized on our balance
sheet under generally accepted accounting principles,
(e) is our reimbursement obligation with respect to letters of credit,
(f) is our obligation with respect to an interest swap obligation or
foreign exchange agreement, or
(g) is an obligation of a party other than us secured by a lien to
which any of our properties or assets (including, without limitation,
our leasehold interests and any other of our tangible or intangible
property rights) is subject, whether or not the obligations secured
thereby shall have been assumed by us or will otherwise be our legal
liability, and
<PAGE> 21
(ii) any deferrals, amendments, renewals, extensions, modifications and
refundings of any of our indebtedness or obligations of the types
referred to in clause (i) above; provided that Senior Indebtedness
will not include
(a) the Subordinated Debt Securities,
(b) any of our indebtedness or obligations (or the instrument creating
or evidencing it) which expressly provides that such indebtedness is
not superior in right of payment to the Subordinated Debt Securities,
or which expressly provides that such indebtedness is subordinate in
right of payment to all of our other indebtedness (including the
Subordinated Debt Securities),
(c) any of our indebtedness or obligations to any of our subsidiaries,
and
(d) any of our indebtedness or obligations incurred by us in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
The Senior Subordinated Debt Securities, the Senior Debt
Securities, the 1996 Senior Notes, the 1997 Senior Notes, the 1997 Senior
Subordinated Notes, the 1998 Senior Notes and the 1999 Senior Subordinated
Notes, debt outstanding under our principal credit facility and certain
other outstanding debt of ours will constitute "Senior Indebtedness" with
respect to the Subordinated Debt Securities. In addition, debt that we
incur in the future may constitute "Senior Indebtedness" with respect to
the Subordinated Debt Securities.
The Senior Subordinated Indenture will include a provision that
will prohibit us from issuing any indebtedness that is subordinated in
right of payment to our Senior Indebtedness and that is senior in right of
payment to the Senior Subordinated Debt Securities. The Subordinated
Indenture will not contain a similar provision.
By reason of the subordination we described above, in the event of
our dissolution, winding-up, liquidation, insolvency or bankruptcy (or
another similar proceeding involving us), upon any distribution of our
assets:
(i) holders of Senior Indebtedness will be entitled to be paid in full
before payments may be made on Senior Subordinated Debt Securities and
Subordinated Debt Securities and the holders of Senior Subordinated
Debt Securities and Subordinated Debt Securities will be required to
pay over their share of such distributions to the holders of Senior
Indebtedness until such Senior Indebtedness is paid in full, except
that holders of Senior Subordinated Debt Securities and Subordinated
Debt Securities may receive securities that are subordinated at least
to the same extent as such Senior Subordinated Debt Securities or
Subordinated Debt Securities, as the case may be;
<PAGE> 22
(ii) in addition, holders of Senior Subordinated Debt Securities will be
entitled to be paid in full before payments may be made on
Subordinated Debt Securities and the holders of Subordinated Debt
Securities will be required to pay over their share of such
distributions to the holders of Senior Subordinated Debt Securities
until such Senior Subordinated Debt Securities are paid in full,
except that holders of Subordinated Debt Securities may receive
securities that are subordinated at least to the same extent as such
Subordinated Debt Securities; and
(iii)our creditors who are not holders of Senior Subordinated Debt
Securities or Subordinated Debt Securities may recover less, ratably,
than holders of Senior Indebtedness and may recover more, ratably,
than the holders of the Senior Subordinated Debt Securities or
Subordinated Debt Securities.
Accordingly, such subordination may result in a reduction or elimination of
payments to the holders of all Senior Subordinated Debt Securities and
Subordinated Debt Securities.
Except as we may describe in the applicable prospectus supplement
and below, we may not make any payment of principal or interest on any of
the Offered Debt Securities that are Senior Subordinated Debt Securities or
Subordinated Debt Securities, nor may we acquire any Offered Debt
Securities that are Senior Subordinated Debt Securities or Subordinated
Debt Securities for cash or property (other than securities that are
subordinated at least to the same extent as such Senior Subordinated Debt
Securities or Subordinated Debt Securities, as the case may be), in each
case except as set forth in the Indenture for such Offered Debt Securities,
if
(i) a default in the payment of principal, premium, if any, or interest on
any Designated Senior Indebtedness occurs and continues beyond the
applicable period of grace, if any, specified in the applicable
instrument, lease, contract, agreement or other document evidencing
such Designated Senior Indebtedness, or
(ii) a default, other than a payment default, with respect to any
Designated Senior Indebtedness occurs and is continuing that permits
the holders of the Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the default from a
person permitted to give such notice under the Indenture requesting
that payment of principal or interest with respect to the Offered Debt
Securities that are Senior Subordinated Debt Securities or
Subordinated Debt Securities be prohibited; provided that the
foregoing will not prohibit payment made in accordance with the
defeasance or satisfaction and discharge provisions of the applicable
Indenture from monies deposited with the Trustee in accordance with
such provisions prior to any such default, judicial proceeding or
notice.
<PAGE> 23
However, except as we otherwise describe in the applicable prospectus
supplement, we may resume payments in respect of the Offered Debt
Securities that are Senior Subordinated Debt Securities or Subordinated
Debt Securities and may acquire such Senior Subordinated Debt Securities or
Subordinated Debt Securities upon the earlier of
(i) the date upon which the default or event of default with respect to
such Designated Senior Indebtedness is cured or waived or ceases to
exist, or
(ii) in the case of an event of default referred to in clause (ii) of the
preceding paragraph, 179 days pass after notice is received (a
"Payment Blockage Period"); provided that the terms of the applicable
Indenture otherwise permit the payment or acquisition of such Offered
Debt Securities at the time in question.
Only one Payment Blockage Period may be commenced within any consecutive
365-day period in respect of the Offered Debt Securities that are Senior
Subordinated Debt Securities or Subordinated Debt Securities, and in no
event will a Payment Blockage Period extend beyond 179 days from the date
payment on such Offered Debt Securities is due. For the purpose of the
provisions described in this paragraph, no default which, to the knowledge
of certain specified authorized persons, existed or was continuing on the
date of the commencement of any Payment Blockage Period by such person,
shall be made the basis for the commencement of a subsequent Payment
Blockage Period by such person, whether or not within any consecutive
365-day period, unless such default is cured or waived or ceases to exist,
or the benefits of the provisions of the applicable Indenture described in
this paragraph are waived in writing by such authorized persons for a
period of not less than 90 consecutive days. Except to the extent we tell
you otherwise in the applicable prospectus supplement, the Senior
Subordinated Indenture and the Subordinated Indenture will define
"Designated Senior Indebtedness" as
(i) our Senior Indebtedness permitted to be incurred under the applicable
Indenture under any institutional credit agreement (including, our
existing principal credit facility), and
(ii) any of our other Senior Indebtedness permitted to be incurred under
the applicable Indenture the principal amount of which is $25,000,000
or more.
Except as we may otherwise tell you in the applicable prospectus
supplement, the subordination provision we described above will not prevent
the occurrence of any Event of Default under the Senior Subordinated
Indenture or the Subordinated Indenture.
<PAGE> 24
The indentures for the 1996 Senior Notes, the 1997 Senior Notes,
the 1998 Senior Notes, the 1997 Senior Subordinated Notes, the 1999 Senior
Subordinated Notes and the Company's principal credit facility restrict us
from acquiring our subordinated indebtedness, including any Senior
Subordinated Debt Securities or Subordinated Debt Securities. For example,
the indentures for the 1996 Senior Notes, the 1997 Senior Notes, the 1998
Senior Notes, the 1997 Senior Subordinated Notes and the 1999 Senior
Subordinated Notes contain similar covenants limiting the amount of
"restricted payments" made by us, including the acquisition of subordinated
debt. The amount of restricted payments permitted to be made by us will
vary depending upon, among other things, our cumulative earnings and
restricted payments made (e.g., repurchases of our stock). Our principal
credit facility generally prohibits us from acquiring subordinated debt,
other than by using the proceeds of new subordinated debt or equity
securities.
In addition, the claims of third parties to the assets of our
subsidiaries incurring obligations to such third parties will be superior
to ours as a stockholder, and therefore the Offered Debt Securities may be
deemed to be effectively subordinated to the claims of such third parties.
Certain of Our Covenants Applicable to the Offered Debt Securities
Affirmative Covenants. In addition to such other covenants, if
any, as we may describe in the applicable prospectus supplement, the
Indentures for the Offered Debt Securities will require us, subject to
certain limitations described therein, to, among other things, do the
following:
(i) pay the principal of, and interest on, the Offered Debt Securities
when it is due,
(ii) maintain an office or agency where you may surrender Offered Debt
Securities for payment or registration of transfer or exchange and
where you may serve us with notices and demands in respect of the
Offered Debt Securities and the applicable Indenture,
(iii)deliver to the Trustee copies of all reports we file with the SEC,
(iv) deliver to the Trustee annual officers' certificates on our compliance
with our obligations under each Indenture,
(v) maintain our corporate existence,
(vi) pay our taxes when due except where such taxes are being contested in
good faith, and
(vii)maintain insurance in at least such amounts and against such risks as
are usually and prudently insured against in the same general area by
companies engaged in the same or a similar business as us.
<PAGE> 25
Unless we tell you otherwise in the accompanying prospectus supplement, the
Indentures will not restrict our or our subsidiaries' business or
operations, limit our or their indebtedness or prohibit us or them from
incurring any liens, charges or other encumbrances on any of our or their
properties or other assets.
Limitations on Mergers and Consolidations. Unless we tell you
otherwise in the applicable prospectus supplement, the Indenture for the
Offered Debt Securities will provide that we will not consolidate or merge
with or into or sell, lease, convey or otherwise dispose of all or
substantially all of our assets (including, without limitation, by way of
liquidation or dissolution) or assign any of our obligations under the
Indenture or the Offered Debt Securities (as an entirety or substantially
an entirety in one transaction or series of related transactions), to any
person unless
(i) the person formed by or surviving such consolidation or merger (if other
than us), or to which sale, lease, conveyance or other disposition or
assignment will be made (collectively, the "Successor"), is a solvent
corporation or other legal entity organized and existing under the
laws of the United States, one of the states thereof or the District
of Columbia, and the Successor expressly assumes by supplemental
indenture all of our obligations under the Offered Debt Securities and
the Indenture related thereto,
(ii) immediately after giving effect to such transaction, no default or
Event of Default has occurred and is continuing, and
(iii)certain other conditions are met.
Upon compliance with these provisions by the Successor, we would be
relieved of our obligations under the Indenture and the Offered Debt
Securities. No quantitative or other established meaning has been given to
the phrase "all or substantially all" by courts which have interpreted this
phrase in various contexts. In interpreting this phrase, courts make a
subjective determination as to the portion of assets conveyed, considering
such factors as the value of the assets conveyed and the proportion of an
entity's income derived from the assets conveyed. Accordingly, there may be
uncertainty as to whether a holder of Offered Debt Securities can determine
whether we have sold, leased, conveyed or otherwise disposed of all or
substantially all of our assets and exercise any remedies such holder may
have upon the occurrence of any such transaction.
Redemption
If and to the extent we tell you in an accompanying prospectus
supplement, we will have the right to redeem the Offered Debt Securities,
in whole or from time to time in part, after the date and at the redemption
prices we set forth in the accompanying prospectus supplement.
<PAGE> 26
Events of Default
Except as we may describe in the accompanying prospectus
supplement, an "Event of Default" will be defined in each Indenture for the
Offered Debt Securities as any of the following events (whatever the reason
for such Event of Default and whether it will be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
any order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) our failure to pay interest on any Offered Debt Security when the same
becomes due and payable and the continuance of any such failure for a
period of 30 days;
(ii) our failure to pay the principal of any such Offered Debt Security
when the same becomes due and payable at maturity, upon acceleration
or otherwise;
(iii)our failure to make any sinking fund payment when the same becomes
due and payable;
(iv) our failure to comply with any of our agreements or covenants in, or
provisions of, such Offered Debt Security or the applicable Indenture
relating to such Offered Debt Securities (other than an agreement or
covenant a default in whose performance or whose breach is
specifically dealt with) and such failure continues for the period and
after the notice specified below;
(v) the acceleration of any indebtedness for borrowed money or guarantees
thereof (other than Non-Recourse Indebtedness (as defined in the
applicable Indenture)) of ours or any of our subsidiaries that has an
outstanding principal amount of $10,000,000 or more in the aggregate;
provided that, in the event any such acceleration is withdrawn or
otherwise rescinded within a period of five days after such
acceleration by the holders of such indebtedness, any Event of Default
under the provisions of the applicable Indenture described in this
clause (v) relating to such Offered Debt Securities will be deemed to
be cured and any acceleration under such Indenture will be deemed
withdrawn or rescinded;
(vi) our or any of our subsidiaries' failure to make any principal or
interest payment in respect of indebtedness for borrowed money or
guarantees thereof (other than Non-Recourse Indebtedness) of ours or
any of any of our subsidiaries with an outstanding aggregate principal
amount of $10,000,000 or more within five days of such principal or
interest payment becoming due and payable (after giving effect to any
applicable grace period set forth in the documents governing such
indebtedness);
<PAGE> 27
(vii)a final judgment or judgments that exceed $10,000,000 or more in the
aggregate, for the payment of money having been entered by a court or
courts of competent jurisdiction against us or any of our subsidiaries
and such judgment or judgments are not satisfied, stayed, annulled or
rescinded within 60 days of being entered;
(viii) if we or any Material Subsidiary pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(ix) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against us or any Material Subsidiary as debtor in
an involuntary case,
(B) appoints a Custodian for us or any Material Subsidiary or a
Custodian for all or substantially all of the property of ours or a
Material Subsidiary, or
(C) orders the liquidation of us or any Material Subsidiary;
and the order or decree remains unstayed and in effect for 60 days; or
(x) any other Event of Default provided in the supplemental indenture
under which the applicable class of Offered Debt Securities is issued
or in the form of such Offered Debt Security.
For purposes hereof, "Material Subsidiary" means a subsidiary of
ours which accounted for three percent or more of our consolidated tangible
net assets or consolidated cash flow available for fixed charges on a
consolidated basis for the fiscal year ending immediately prior to any
default or Event of Default, all computed in accordance with generally
accepted accounting principles.
<PAGE> 28
The Indentures relating to the Offered Debt Securities will
provide that the Trustee will not be deemed to know of a default unless a
trust officer has actual knowledge of such default or receives written
notice of such default with specific reference to such default.
The Indentures relating to the Offered Debt Securities will
provide that a default as described in sub-clause (iv) above is not an
Event of Default until the Trustee notifies us, or the holders of at least
25 percent in aggregate principal amount of the then outstanding applicable
class of Offered Debt Securities under the Indenture, or such other
percentage as may be specified in the applicable prospectus supplement,
notify us and the Trustee, of the default and we do not cure the default
within 60 days after we receive the notice, or for such other period as may
be specified in the applicable prospectus supplement. The notice must
specify the default, demand that it be remedied and state that the notice
is a "Notice of Default." If such a default is cured within the applicable
time period, it ceases.
Unless we tell you otherwise in an accompanying prospectus
supplement, the Indentures for the Offered Debt Securities will provide
that if an Event of Default (other than an Event of Default described in
sub-clause (viii) or (ix) above) shall have occurred and be continuing
under the Indenture, the Trustee (after receiving indemnities from the
holders of such Offered Debt Securities to its satisfaction) by notice to
us, or the holders of at least 25 percent in principal amount of the
Offered Debt Securities then outstanding, or such other percentage as may
be specified in the prospectus supplement, by notice to us and the Trustee,
may declare all of such Offered Debt Securities to be due and payable
immediately. Upon such declaration, the amounts due and payable on such
Offered Debt Securities, as determined pursuant to the provisions of the
"Acceleration" section of the Indenture, will be due and payable
immediately. Unless we tell you otherwise in an accompanying prospectus
supplement, the Indentures for the Offered Debt Securities will provide
that if an Event of Default described in sub-clause (viii) or (ix) above
occurs, the Offered Debt Securities will automatically become and be
immediately due and payable without any declaration, notice or other act by
the Trustee and us or any holder. The holders of a majority in principal
amount of the Offered Debt Securities, or such other percentage as may be
specified in the applicable prospectus supplement, by written notice to the
Trustee and us, may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
of or interest on the Offered Debt Securities) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
<PAGE> 29
Unless we tell you otherwise in an accompanying prospectus
supplement, the Indentures for the Offered Debt Securities will contain a
provision entitling the Trustee, subject to the duty of the Trustee during
a default to act with the required standard of care, to be indemnified by
the holders of the applicable class of Offered Debt Securities before
proceeding to exercise any right or power under the Indenture at the
holders' request. Subject to such provisions in the Indenture for the
Offered Debt Securities for the indemnification of the Trustee and certain
other limitations, the holders of a majority in principal amount of the
applicable class of Offered Debt Securities then outstanding, or such other
percentage as may be specified in the applicable prospectus supplement, may
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee. The Trustee may withhold from the holders of such Offered
Debt Securities notice of any continuing default or Event of Default
(except any default or Event of Default in payment of principal or interest
on the Offered Debt Securities) if the Trustee determines that withholding
such notice is in the holders' interest.
Unless we tell you otherwise in an accompanying prospectus
supplement, the Indentures relating to the Offered Debt Securities will
provide that no holder of Offered Debt Securities may institute any action
against us under the Indenture unless:
(i) such holder previously has given the Trustee written notice of
the default and continuance thereof,
(ii) the holders of not less than 25 percent in principal amount
of the applicable class of Offered Debt Securities then
outstanding, or such other percentage as may be specified in
the applicable prospectus supplement, have requested the
Trustee to institute such action and offered the Trustee
indemnity satisfactory to the Trustee against any loss,
liability, or expense,
(iii)the Trustee has not instituted such action within 60 days
of the request, and
(iv) the Trustee has not received direction inconsistent with
such written request from the holders of a majority in
principal amount of the Offered Debt Securities then
outstanding, or such other amount as may be specified in the
applicable prospectus supplement.
Notwithstanding any other provision of the applicable Indenture, the right
of any holder of the applicable class of Offered Debt Securities to receive
payment of principal and interest on such Offered Debt Security on or after
the respective due dates thereof, or, subject to the provisions of the
applicable Indenture described in the preceding sentence, to bring suit for
the enforcement of any payment on or after such respective payment dates,
will not be impaired or affected without the consent of such holder.
<PAGE> 30
The Indentures and the Offered Debt Securities will provide that
none of our directors, officers or employees, as such, will have any
liability for any of our obligations under the Offered Debt Securities or
the Indentures. The Indentures and the Offered Debt Securities will also
each provide that each holder of the Offered Debt Securities, by accepting
the Offered Debt Securities, waives and releases all such liability.
Unless we tell you otherwise in an accompanying prospectus
supplement, the Indentures for the Offered Debt Securities will provide
that we will be required to deliver to the Trustee an annual statement
regarding compliance with the Indenture, and include in such statement, if
any officer of ours is aware of any default or Event of Default, a
statement specifying such default or Event of Default and what action we
are taking or propose to take with respect thereto. In addition, we will be
required to deliver to the Trustee prompt written notice of the occurrence
of any default or Event of Default.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease our obligations under the Indentures
for the Offered Debt Securities in the following manner.
We may discharge certain obligations to holders of the Offered
Debt Securities that have not already been delivered to the Trustee for
cancellation and that have either become due and payable or are by their
terms due and payable within one year. We may do this by irrevocably
depositing with the Trustee cash or U.S. Government Obligations, or a
combination thereof, as trust funds in an amount sufficient to pay at
maturity the principal of and interest on the Offered Debt Securities.
We may also discharge any and all of our obligations to holders of
the Offered Debt Securities at any time ("defeasance"), but may not thereby
avoid our duty to register the transfer or exchange of the Offered Debt
Securities, to replace any temporary, mutilated, destroyed, lost or stolen
Offered Debt Securities or to maintain an office or agency in respect of
the Offered Debt Securities and certain other obligations. Alternatively,
we may be released with respect to the Offered Debt Securities from the
obligations imposed by certain covenants of the applicable Indenture and
omit to comply with such covenants without creating an Event of Default
("covenant defeasance"). Defeasance or covenant defeasance may be effected
only if, among other things:
we irrevocably deposit with the Trustee cash or U.S. Government
Obligations, or a combination thereof, as trust funds in an
amount certified to be sufficient to pay at maturity the
principal of and interest on all outstanding Offered Debt
Securities;
no Event of Default under the Offered Debt Securities has
occurred and is then continuing;
<PAGE> 31
the defeasance or covenant defeasance will not result in an event
of default under any agreement to which we are a party or by
which we are bound; and
we deliver to the Trustee an opinion of counsel to the effect
that the holders of the Offered Debt Securities will not
recognize income, gain or loss for federal income tax purposes
because of the defeasance or covenant defeasance and such
defeasance or covenant defeasance will not otherwise alter such
holders' federal income tax treatment of principal and interest
on the Offered Debt Securities.
For purposes hereof, "U.S. Government Obligations" means
(i) any security that is
(a) a direct obligation of the United States for the payment of
which the full faith and credit of the United States is pledged,
or
(b) an obligation of a person controlled or supervised by and
acting as an agency or instrumentality of the United States the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States, which, in either case
(a) or (b), is not callable or redeemable at the option of the
issuer thereof, and
(ii) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933) as custodian
with respect to any U.S. Government Obligation specified in
clause (i) and held by such custodian for the account of the
holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such
U.S. Government Obligation; 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
depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such
depositary receipt.
Transfer and Exchange
You will only be able to transfer or exchange the Offered Debt
Securities if you comply with the provisions of the applicable Indentures.
The registrar may require you, among other things, to give appropriate
endorsements and transfer documents, and to pay any taxes and fees required
by law or permitted by the Indenture.
<PAGE> 32
Modifications to the Indentures
Unless we tell you otherwise in the accompanying prospectus
supplement, we will be allowed under the Indenture for the Offered Debt
Securities to enter into supplemental indentures with the Trustee without
your consent to, among other things:
(i) cure any ambiguity, defect or inconsistency in the
applicable Indenture for the Offered Debt Securities;
(ii) comply with the "Limitations on Mergers and Consolidations"
section set forth in the Indenture;
(iii)provide for uncertificated Offered Debt Securities in
addition to certificated Offered Debt Securities;
(iv) make any change that does not adversely affect the legal
rights under the Indenture of holders of Offered Debt
Securities;
(v) add to covenants for the benefit of the holders of Offered
Debt Securities or to surrender any right or power in the
Indenture conferred upon us;
(vi) add any additional Events of Default for the benefit of the
holders of Offered Debt Securities;
(vii)change or eliminate any of the provisions of each Indenture
before Offered Debt Securities are issued thereunder;
(viii) establish the form or terms of the Offered Debt
Securities;
(ix) evidence and provide for the acceptance of appointment under
the Indenture of a successor Trustee with respect to the
Offered Debt Securities and add to or change any of the
provisions of the Indenture as shall be necessary to provide
for or facilitate the administration of the trusts under the
Indenture by more than one Trustee;
(x) supplement any of the provisions of the Indentures to such
extent as shall be necessary to permit or facilitate the
defeasance or discharge of Offered Debt Securities pursuant
to the applicable Indenture; provided that any such action
shall not adversely affect the interests of the holders of
Offered Debt Securities; or
(xi) comply with the qualification of the Indenture under the
TIA.
<PAGE> 33
Unless we tell you otherwise in an accompanying prospectus
supplement, the Trustee and we will be permitted under the Indenture for
the Offered Debt Securities, with the consent of the holders of not less
than a majority in principal amount of each class of Offered Debt
Securities outstanding, or such other percentage as may be specified in the
applicable prospectus supplement, to add any provision to, change in any
manner or eliminate any of the provisions of the Indentures for the Offered
Debt Securities or modify in any manner the rights of the holders of the
Offered Debt Securities so affected; provided that the Trustee and we may
not, without the consent of the holder of each outstanding Offered Debt
Security affected thereby, do, among other things, any of the following:
(i) change the stated maturity of the principal of, or any
installment of principal of, or interest on, any Offered
Debt Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where any
Offered Debt Security or interest thereon is payable, or
change the coin or currency in which any Offered Debt
Security 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);
(ii) reduce the percentage of the outstanding Offered Debt
Securities, the consent of whose holders is required for any
such amendment, or the consent of whose holders is required
for any waiver of compliance with certain provisions of the
Indenture or certain defaults thereunder and their
consequences provided for in the Indenture;
(iii)modify Section 13.02(d)(iii) or 8.07 of the Indenture; or
(iv) modify the ranking or priority of the Offered Debt
Securities in a manner adverse to the holders of Offered
Debt Securities.
The Senior Subordinated Indenture and the Subordinated Indenture may not be
amended to alter the subordination of any outstanding Senior Subordinated
Debt Securities or Subordinated Debt Securities without the consent of each
holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
<PAGE> 34
Unless we tell you otherwise in an accompanying prospectus
supplement, the holders of at least a majority in principal amount of each
class of the then outstanding Offered Debt Securities may on behalf of the
holders of all Offered Debt Securities, or such other amount as may be
specified in the applicable prospectus supplement, waive (i) insofar as the
Offered Debt Securities are concerned, our compliance with certain
covenants of the applicable Indenture and (ii) any past default under the
Indenture with respect to the Offered Debt Securities, except a default in
the principal of or interest on any Offered Debt Security or in respect of
a provision which under the Indenture cannot be modified or amended without
the consent of the holder of each outstanding Offered Debt Security
affected.
Concerning the Trustee
IBJ Whitehall Bank & Trust Company is to be Trustee under each of
the Indentures and we have also appointed it as paying agent and registrar.
The Indenture will provide that once we execute and deliver the Offered
Debt Securities to the Trustee, it shall authenticate and deliver the
Offered Debt Securities as per our instructions. IBJ Whitehall Bank & Trust
Company, formerly known as IBJ Schroder Bank & Trust Company, is the
trustee under the Indenture, dated as of February 16, 1996, relating to the
1996 Senior Notes, the Indenture, dated as of August 28, 1997, relating to
the 1997 Senior Notes and the 1998 Senior Notes, the Indenture, dated as of
August 28, 1997, relating to the 1997 Senior Subordinated Notes and the
Indenture, dated as of February 19, 1999, relating to the 1999 Senior
Subordinated Notes and it or any other Trustee, or their respective
affiliates, may from time to time have lender or other business
arrangements with us. The Indentures will contain certain limitations on
the rights of the Trustee, should it or its affiliates become a creditor to
us, to obtain payment of claims in certain cases or to realize on certain
property received in respect of any such claim as security or otherwise.
The Trustee and its affiliates may engage in other transactions; however,
if they acquire any conflicting interest, the conflict must be eliminated
or the Trustee must resign. Governing Law
Unless otherwise specified in the accompanying prospectus
supplement, the Indentures for the Offered Debt Securities and the Offered
Debt Securities will be governed by the laws of the State of New York.
PLAN OF DISTRIBUTION
We may sell the Offered Debt Securities offered under this
prospectus:
(i) through agents,
(ii) through underwriters,
(iii)through dealers,
(iv) directly to purchasers (through a specific bidding or
auction process or otherwise), or
(v) through a combination of any such methods of sale.
<PAGE> 35
We may distribute Debt Securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices relating to such
prevailing market prices or at negotiated prices.
We will describe in the applicable prospectus supplement the
specific terms of the offering of a particular issuance of Debt Securities
to which such prospectus supplement relates, including
(i) the name or names of any underwriters or agents with whom we
have entered into arrangements for the sale of such Debt
Securities,
(ii) the initial public offering or purchase price of such Debt
Securities,
(iii)any underwriting discounts, commissions and other items
constituting underwriters' compensation from us and any
other discounts, concessions or commissions allowed or
reallowed or paid by any underwriters to other dealers,
(iv) any commissions paid to any agents,
(v) the net proceeds to us, and
(vi) the securities exchange, if any, on which such Debt
Securities will be listed.
If we use an underwriter or underwriters in connection with the
sale of Debt Securities, we will execute an underwriting agreement with
such underwriter or underwriters at the time we agree to the sale. We will
tell you the names of the specific managing underwriter or underwriters, as
well as any other underwriters, and the terms of the transactions,
including compensation of the underwriters and dealers, if any, in the
applicable prospectus supplement. The underwriters will then use that
prospectus supplement to make resales of the Debt Securities.
If we use a dealer in the sale of Debt Securities, we will sell
such Debt Securities to the dealer, as principal. The dealer may then
resell such Debt Securities to the public at varying prices to be
determined by such dealer at the time of resale. We will tell you the name
of the dealer and the terms of the transactions in the applicable
prospectus supplement.
We may directly solicit offers to purchase the Debt Securities and
sell them directly to institutional investors or others. We will tell you
the terms of any such sales, including the terms of any bidding or auction
process, if used, in the applicable prospectus supplement.
<PAGE> 36
We may enter into agreements with agents, underwriters and dealers
which entitle them to indemnification by us against certain liabilities,
including liabilities under the Securities Act of 1933. Any such agents,
underwriters or dealers or their affiliates may be customers of ours, or
engage in transactions with or perform services for us, in the ordinary
course of business.
If we tell you in the applicable prospectus supplement, we will
authorize agents, underwriters and other persons to solicit offers from
certain institutions to purchase Debt Securities from us pursuant to
contracts providing for payment and delivery on a future date. These
institutions include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable
institutions and others, but in all cases we must first approve of the
institution. The obligations of any purchaser under any such contract will
be subject to the condition that the purchase of the Debt Securities shall
not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility for the validity or
performance of such contracts.
We may grant underwriters who participate in the distribution of
Debt Securities an option to purchase additional Debt Securities to cover
over-allotments, if any.
We will tell you the place and date of delivery for Debt
Securities in respect of which this prospectus is being delivered in the
applicable prospectus supplement.
Unless we tell you otherwise in the applicable prospectus
supplement, the Debt Securities covered by this prospectus will be a new
issue of securities, will not have an established trading market when
issued and will not be listed on any securities exchange. Any underwriters
or agents to or through whom such Debt Securities are sold by us for public
offering and sale may make a market in such Debt Securities, but such
underwriters or agents 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 such Debt Securities.
LEGAL MATTERS
Kaye, Scholer, Fierman, Hays & Handler, LLP, New York, New York,
our counsel, will issue an opinion about the legality of the Offered Debt
Securities for us. Underwriters, if any, for the Offered Debt Securities
will be advised about issues relating to any offering of the Offered Debt
Securities by their own legal counsel named in the prospectus supplement
relating to the Offered Debt Securities.
<PAGE> 37
EXPERTS
The financial statements of the Company incorporated by reference
in this Prospectus and elsewhere in the Registration Statement have been
audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said reports.
<PAGE> 38
You should rely only on the information incorporated by reference
or contained in this prospectus and the related prospectus
supplement. We have not, authorized anyone to provide you with
other information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell the Debt Securities in any jurisdiction
where the offer or sale is not permitted. You should not assume
that the information incorporated by reference or contained in
this prospectus or any related prospectus supplement is accurate
as of any date other than the date on the front cover of this
prospectus or the prospectus supplement. Our business, financial
condition, results of operations and prospects may have changed
since that date.
U.S. Home Corporation
$175,000,000
Debt Securities
Prospectus
---------- --,
<PAGE> 39
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<CAPTION>
The estimated expenses in connection with the offering are as follows:
<S> <C>
Securities and Exchange Commission Registration Fee.......... $ 44,250
Accounting Fees and Expenses................................ $ 60,000 (1)
Blue Sky Fees and Expenses (including counsel fees)........ $ 5,000 (1)
Legal Fees and Expenses.................................... $200,000 (1)
Printing and Engraving Expenses.......................... . $ 60,000 (1)
Trustee Fees and Expenses.................................. $ 30,000 (1)
Rating Agency Fees......................................... $175,000 (1)
Miscellaneous............................................ . $ 10,000 (1)
----------
Total............................................... $584,250 (1)
</TABLE>
========
- ----------------
(1) Estimated.
Item 15. Indemnification of Directors and Officers
U.S. Home Corporation (the "Company") is a Delaware corporation.
The Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), provides, as do the charters of many other
publicly held companies incorporated in the State of Delaware, that the
personal liability of directors of the Company to the Company is eliminated
to the maximum extent permitted by applicable law. The Certificate of
Incorporation provides for the indemnification of the directors, officers,
employees, and agents of the Company and its subsidiaries to the full
extent that may be permitted by applicable law from time to time. Certain
provisions of the Certificate of Incorporation protect the Company's
directors against personal liability for monetary damages resulting from
breaches of their fiduciary duty of care, except as set forth below. Under
the Delaware General Corporation Law, absent these provisions, directors
could be held liable for gross negligence in the performance of their duty
of care but not for simple negligence. The Company's directors remain
liable for breaches of their duty of loyalty to the Company and its
stockholders, as well as for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law and
transactions from which a director derives improper personal benefit. The
Certificate of Incorporation also does not absolve directors of liability
under section 174 of the Delaware General Corporation Law, which makes
directors personally liable for unlawful dividends or unlawful stock
repurchases or redemptions in certain circumstances and expressly sets
forth a negligence standard with respect to such liability.
<PAGE> 40
Under the Delaware General Corporation Law, directors, officers,
employees and other individuals may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits, or proceedings,
whether civil, criminal, administrative, or investigative (other than an
action by or in the right of the corporation -- a "derivative action") if
they acted in good faith and in a manner they reasonably believed to be in
or not opposed to the best interests of the indemnifying corporation and,
with respect to any criminal action or proceeding, had no reasonable cause
to believe their conduct was unlawful. A similar standard of care is
applicable in the case of a derivative action, except that indemnification
only extends to expenses (including attorneys' fees) incurred in connection
with defense or settlement of such an action, and the Delaware General
Corporation Law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has
been found liable to the indemnifying corporation.
The Certificate of Incorporation provides, among other things,
that each person who was or is made a party to, or is threatened to be made
a party to, or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a "proceeding"),
by reason of the fact that he or she, or a person for whom he or she is the
legal representative, is or was a director or officer of the Company (or
was serving at the request of the Company as a director, officer, employee
or agent for another entity), will be indemnified and held harmless by the
Company to the fullest extent permitted by applicable law as it presently
exists or may be amended, against all expense, liability or loss (including
attorneys' fees), reasonably incurred by such person in connection
therewith. The Company will pay the expenses (including attorneys' fees)
incurred in defending any proceeding in advance of its final disposition.
However, the payment of expenses incurred by a director or officer in
advance of the final disposition of the proceeding will be made only upon
receipt by the Company of an undertaking by the director or officer to
repay all amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under the Certificate
of Incorporation or otherwise.
If a claim for indemnification or payment of expenses is not paid
in full within 60 days after a written claim therefor has been received by
the Company, the claimant may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, will be entitled to be
paid the expense of prosecuting such claim. In any such action, the Company
will have the burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under applicable law.
The indemnification rights conferred on any person under the
Certificate of Incorporation will not be deemed exclusive of any other
rights which those indemnified may have or acquire under any statute,
provision of the Certificate of Incorporation, the Company's Amended and
Restated By-Laws, agreement, vote of stockholders of the Company or
disinterested directors or otherwise.
<PAGE> 41
The Company's obligation, if any, to indemnify any person who was
or is serving at its request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity will be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, enterprise or nonprofit entity.
Subject to the availability of insurance at substantially similar
rates for similar coverage (as determined in the sole discretion of the
Company), the Company will maintain insurance at (i) the levels in effect
as of June 21, 1993 with respect to each director, officer, employee or
agent of the Company until June 21, 1996, or (ii) the levels in effect as
of the date of the expiration of the term, death, removal, retirement or
resignation of any such person for a period of three years after such
event, whichever level is greater, in either case, with respect to any
proceeding by reason of the fact that such person, or the person for whom
he or she is the legal representative, is or was a director or officer of
the Company or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such person at the Company's expense, to protect the
Company and any such person against any such liability, cost, payment or
expense; provided, however, that subject to the provisions described
herein, the Company will only be required to maintain insurance until the
earlier of the date which is (a) three years after the expiration of the
term, death, removal, retirement or resignation of any such person and (b)
June 21, 1999.
The Company also maintains insurance to protect itself and its
directors, officers, employees and agents against expenses, liabilities and
losses incurred by such persons in connection with their service in the
foregoing capacities.
Any repeal or modification of the provisions described above will
not adversely affect any right or protection under the Certificate of
Incorporation of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
The Company has agreements with each of its directors and
officers. These indemnification agreements provide for, among other things,
the (i) indemnification by the Company of the indemnitees thereunder to the
extent described above and (ii) advancement of attorneys' fees and other
expenses.
Certain of the Company's compensation and stock option plans
provide for the indemnification of certain of the Company's officers and
directors in connection with certain matters relating to such plans.
<PAGE> 42
Item 16. Exhibits
(a) Exhibits
Exhibit
No. Description of Document
- -------- -----------------------
4.1 Form of Senior Indenture by and between U.S. Home
Corporation and IBJ Whitehall Bank & Trust Company, as
trustee.
4.2 Form of Senior Subordinated Indenture by and between U.S.
Home Corporation and IBJ Whitehall Bank & Trust Company, as
trustee.
4.3 Form of Subordinated Indenture by and between U.S. Home
Corporation and IBJ Whitehall Bank & Trust Company, as
trustee.
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP.
12 Statements re: Computation of Ratio of Earnings to Fixed
Charges. Incorporated by reference from exhibit 12 to U.S.
Home Corporation Current Report on Form 8-K, dated February
16, 1999.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP.
Included in such firm's opinion filed as Exhibit 5.1.
24 Power of Attorney. Included on the signature page at Page
II-7.
25.1 Statement of Eligibility under the Trust Indenture Act of
1939 of a Corporation Designated to Act as Trustee on Form
T-1.
25.2 Statement of Eligibility under the Trust Indenture Act of
1939 of a Corporation Designated to Act as Trustee on Form
T-1.
25.3 Statement of Eligibility under the Trust Indenture Act of
1939 of a Corporation Designated to Act as Trustee on Form
T-1.
<PAGE> 43
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 Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities
Act of 1933, unless the information
required to be included in such
post-effective amendment is contained
in a periodic report filed with or
furnished to the Securities and
Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
and incorporated herein by reference;
(ii) To reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth in
the registration statement, unless the
information required to be included in
such post-effective amendment is
contained in a periodic report filed
with or furnished to the Securities and
Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
and incorporated herein by reference.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not
exceed that which was registered) and
any deviation from the low or high end
of the estimated maximum offering range
may be reflected in the form of
prospectus filed with the Commission
pursuant to Rule 424(b), if, in the
aggregate, the changes in volume and
price represent no more than a 20%
change in the maximum aggregate
offering price set forth in the
"Calculation of Registration Fee" table
in the effective registration
statement; and
<PAGE> 44
(iii) 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
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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
in Item 15 above, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such 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 of whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE> 45
(d) The undersigned registrant hereby further 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 a 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 of 1933 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.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of section 310 of the Trust Indenture Act
("Act") in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
<PAGE> 46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on March
31, 1999.
U.S. HOME CORPORATION
By:/s/ Robert J. Strudler
-------------------------------
Robert J. Strudler
Chairman and Co-Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below hereby authorizes each of Robert J. Strudler, Isaac Heimbinder, Craig
M. Johnson, Chester P. Sadowski and Thomas A. Napoli, as attorney-in-fact,
to sign and file on his behalf, individually and in each capacity stated
below, any pre-effective or post-effective amendment hereto or any
registration statement relating to the offering covered hereby filed
pursuant to Rule 462(b) under the Securities Act of 1933.
Signature Title Date
- ------------------------- ---------------------- ---------------
/s/ Robert J. Strudler Chairman and Co-Chief March 31, 1999
- ------------------------- Executive Officer and
Robert J. Strudler Director
/s/ Isaac Heimbinder President, Co-Chief March 31, 1999
- ------------------------- Executive Officer,
Isaac Heimbinder Chief Operating
Officer and Director
/s/ Chester P. Sadowski Senior Vice President March 31, 1999
- ------------------------- Controller and Chief
Chester P. Sadowski Accounting Officer
(Principal Accounting
Officer)
/s/ Thomas A. Napoli Vice President -- March 31, 1999
- ------------------------- Corporate Finance
Thomas A. Napoli and Treasurer
(Principal Financial
Officer)
<PAGE> 47
/s/ Glen Adams Director March 31, 1999
- -------------------------
Glen Adams
/s/ Steven L. Gerard Director March 31, 1999
- -------------------------
Steven L. Gerard
/s/ Kenneth J. Hanau, Jr. Director March 31, 1999
- -------------------------
Kenneth J. Hanau, Jr.
/s/ Malcolm T. Hopkins Director March 31, 1999
- -------------------------
Malcolm T. Hopkins
/s/ Charles A. McKee Director March 31, 1999
- -------------------------
Charles A. McKee
/s/ George A. Poole, Jr. Director March 31, 1999
- -------------------------
George A. Poole, Jr.
/s/ Herve Ripault Director March 31, 1999
- --------------------------
Herve Ripault
/s/ James W. Sight Director March 31, 1999
- --------------------------
James W. Sight
<PAGE> 48
Exhibit 4.1
FORM OF
SENIOR INDENTURE,
dated as of _______ __, ____,
between
U.S. HOME CORPORATION
and
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
____% Senior Notes due ____
<PAGE> 49
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
------- -----------------
310(a)(1)............................. 9.10
(a)(2)............................. 9.10
(a)(3)............................. N.A.
(a)(4)............................. N.A.
(b)................................ 9.08; 9.10
(c)................................ N.A.
311(a)................................ 9.11
(b)................................ 9.11
(c)................................ N.A.
312(a)................................ 10.01; 10.02
(b)................................ 10.02; 14.03
(c)................................ 10.02
313(a)................................ 9.06
(b)(1)............................. 9.06
(b)(2)............................. 9.06
(c)................................ 9.06
(d)................................ 9.06
314(a)................................ 6.03
(b)................................ N.A.
(c)(1)............................. 14.07; 14.08
(c)(2)............................. 14.07; 14.08
(c)(3)............................. 14.08
(d)................................ N.A.
(e)................................ 14.05
(f)................................ N.A.
315(a)................................ 9.01
(b)................................ 9.05
(c)................................ 9.01
(d)................................ 9.01
(e)................................ 8.11
316(a)(last sentence)................. 8.05
(a)(1)(A).......................... 8.05
(a)(1)(B).......................... 8.04
(a)(2)............................. Not applicable
(b)................................ 8.07
317(a)(1)............................. 8.08
(a)(2)............................. 8.09
(b)................................ 3.05
318(a)................................ 14.01
N.A. means not applicable
Note: This cross-reference table will not, for any purpose, be
deemed to be a part of this Indenture.
<PAGE> 50
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Rules of Construction ................1
Section 1.02 Definitions ..........................2
Acquisition Debt ....................2
Affiliate ............................2
Affiliate Transaction ................2
Agent ................................2
Asset Sale ..........................2
Asset Sale Offer Date ...............3
Asset Sale Offer Price .............3
Bankruptcy Law ......................3
Board of Directors ...................3
Board Resolution .....................3
Business Day ........................3
Capital Stock .......................3
Capitalized Lease Obligations ......3
Change of Control ...................3
Change of Control Offer ............4
Change of Control Payment Date ......4
Change of Control Price ..............4
Common Equity ........................4
Company ..............................4
Company Request or Company Order .....4
Consolidated Cash Flow Available
for Fixed Charges ....................4
Consolidated Fixed Charge Coverage
Ratio ................................5
Consolidated Income Tax Expense ......5
Consolidated Interest Expense ........5
Consolidated Interest Incurred .......5
Consolidated Net Income ..............5
Consolidated Tangible Net Assets .....6
Consolidated Tangible Net Worth ......6
Corporate Trust Office of the Trustee 6
Covenant Defeasance ..................6
Custodian ............................6
Default ..............................6
<PAGE> 51
Defaulted Interest ...................6
Defeasance ...........................6
Defeasible Series ....................7
Depository ...........................7
Disqualified Stock ...................7
Disqualified Stock Dividend ..........7
DTC ..................................7
Event of Default .....................7
Exchange Act .........................7
Existing Credit Facility .............7
Existing Indebtedness ................8
Fair Market Value ....................8
GAAP .................................8
Global Security ......................8
Hedging Obligations ..................8
Holder ...............................8
Incur ................................8
Indebtedness .........................8
Indenture ............................9
Independent Financial Advisor ........9
Intangible Assets ...................10
Interest Expense ....................10
Interest Incurred ...................10
Interest Payment Date ...............10
Issue Date ..........................11
Legal Holiday .......................11
Lien ................................11
Material Subsidiary..................11
Maturity ...........................11
Net Proceeds ........................11
Net Worth Amount ....................12
Net Worth Offer .....................12
Net Worth Offer Date ................12
Net Worth Offer Price ...............12
Non-Recourse Indebtedness ...........12
Officer .............................12
Officers' Certificate ...............12
Opinion of Counsel ..................12
Outstanding ........................12
Paying Agent ........................13
Permitted Investment ...............13
Permitted Liens .....................14
Person ..............................15
Place of Payment ....................15
Preferred Stock .....................15
Refinancing Indebtedness ............15
Registrar ...........................16
Regular Record Date .................16
Restricted Investment ...............16
Restricted Payment ..................16
SEC..................................17
Securities ..........................17
<PAGE> 52
Security Register ...................17
Special Record Date .................17
Stated Maturity .....................18
Subsidiary ..........................18
Successor ...........................18
TIA .................................18
Trustee .............................18
Trust Officer .......................18
U.S. Government Obligations .........18
"Unrestricted Subsidiary ............19
ARTICLE 2
SECURITY FORMS .....................................................20
Section 2.01 Forms Generally......................20
Section 2.02 Form of Legend for Global Securities.20
Section 2.03 Form of Trustee's Certificate of
Authentication ......................21
ARTICLE 3
THE SECURITIES .....................................................22
Section 3.01 Amount Unlimited; Issuable in Series.22
Section 3.02 Denominations........................24
Section 3.03 Execution, Authentication, Delivery
and Dating ..........................25
Section 3.04 Temporary Securities ................27
Section 3.05 Registration, Registration of
Transfer and Exchange ...............27
Section 3.06 Mutilated, Destroyed, Lost and
Stolen Securities....................31
Section 3.07 Payment of Interest; Interest Rights
Preserved ...........................32
Section 3.08 Persons Deemed Owners ...............33
Section 3.09 Cancellation ........................33
Section 3.10 Computation of Interest..............34
ARTICLE 4
REDEMPTION .........................................................34
Section 4.01 Applicability of Article ............34
Section 4.02 Election to Redeem; Notice to
Trustee .............................34
Section 4.03 Selection of Securities to Be
Redeemed ............................34
Section 4.04 Notices to Holders...................35
Section 4.05 Effect of Notice of Redemption.......36
Section 4.06 Deposit of Redemption Price..........36
Section 4.07 Securities Redeemed in Part..........36
Section 4.08 Optional Redemption .................36
<PAGE> 53
ARTICLE 5
SINKING FUNDS.......................................................37
Section 5.01 Applicability of Article.............37
Section 5.02 Satisfaction of Sinking Fund
Payments with Securities.............37
Section 5.03 Redemption of Securities for
Sinking Fund.........................37
ARTICLE 6
COVENANTS ..........................................................39
Section 6.01 Payment of Securities................39
Section 6.02 Maintenance of Office or Agency......39
Section 6.03 SEC Reports; Financial Statements....40
Section 6.04 Money for Security Payments to Be
Held in Trust .......................40
Section 6.05 Compliance Certificate...............42
Section 6.06 Corporate Existence, etc. ...........42
Section 6.07 Payment of Taxes and Other Claims....42
Section 6.08 Insurance ...........................43
Section 6.09 Stay, Extension and Usury Laws.......43
Section 6.10 Maintenance of Properties............43
Section 6.11 Disposition of Proceeds of Asset
Sales ...............................43
Section 7.01 Limitations on Mergers and
Consolidations.......................57
Section 7.02 Successor Corporation Substituted....58
ARTICLE 8
DEFAULTS AND REMEDIES .............................................58
Section 8.01 Events of Default...................58
Section 8.02 Acceleration........................60
Section 8.03 Other Remedies......................61
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture
Provisions..........................61
Section 8.05 Control by Majority.................62
Section 8.06 Limitations on Suits................62
Section 8.07 Rights of Holders to Receive
Payment.............................62
Section 8.08 Collection Suit by Trustee..........63
Section 8.09 Trustee May File Proofs of Claim....63
Section 8.10 Priorities..........................63
Section 8.11 Undertaking for Costs...............64
Section 8.12 Restoration of Rights and Remedies..64
<PAGE> 54
ARTICLE 9
TRUSTEE ..........................................................64
Section 9.01 Duties of Trustee...................64
Section 9.02 Rights of Trustee...................66
Section 9.03 Individual Rights of Trustee........67
Section 9.04 Trustee's Disclaimer................67
Section 9.05 Notice of Defaults .................67
Section 9.06 Reports by Trustee to Holders ......67
Section 9.07 Compensation and Indemnity..........68
Section 9.08 Replacement of Trustee..............68
Section 9.09 Successor Trustee by Merger, etc. ..69
Section 9.10 Eligibility; Disqualification.......70
Section 9.11 Preferential Collection of Claims
Against Company ....................70
ARTICLE 10
HOLDERS' LISTS.....................................................70
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders............70
Section 10.02 Preservation of Information.........71
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE ................................71
Section 11.01 Company's Option to Effect
Defeasance or Covenant Defeasance...71
Section 11.02 Defeasance and Discharge............71
Section 11.03 Covenant Defeasance ................72
Section 11.04 Conditions to Defeasance or
Covenant Defeasance ................72
Section 11.05 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions......74
Section 11.06 Reinstatement.......................75
ARTICLE 12
SATISFACTION AND DISCHARGE .......................................75
Section 12.01 Satisfaction and Discharge of
Indenture ..........................75
Section 12.02 Application of Trust Money..........77
ARTICLE 13
SUPPLEMENTAL INDENTURES ...........................................77
Section 13.01 Supplemental Indentures Withou
Consent of Holders..................77
Section 13.02 Supplemental Indentures With
Consent of Holders..................78
Section 13.03 Compliance With TIA.................80
Section 13.04 Revocation and Effect of Consents...80
Section 13.05 Notation on or Exchange of
Securities .........................81
Section 13.06 Trustee to Sign Amendments, etc. ...81
<PAGE> 55
ARTICLE 14
MISCELLANEOUS .....................................................81
Section 14.01 TIA Controls........................81
Section 14.02 Notices.............................81
Section 14.03 Communication by Holders With
Other Holders.......................83
Section 14.04 Action by Securityholders...........83
Section 14.05 Proof of Execution of Instruments
and Holding of Securities...........84
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities.............84
Section 14.07 Certificate and Opinion as to
Conditions Precedent ...............84
Section 14.08 Statements Required in Certificate
or Opinion..........................85
Section 14.09 Rules by Trustee and Agents.........86
Section 14.10 No Recourse Against Others..........86
Section 14.11 Governing Law.......................86
Section 14.12 No Adverse Interpretation of Other
Agreements .........................86
Section 14.13 Successors .........................86
Section 14.14 Severability .......................87
Section 14.15 Counterpart Originals ..............87
Section 14.16 Trustee as Paying Agent and
Registrar...........................87
Section 14.17 Table of Contents,
Headings, etc. .....................87
Section 14.18 Benefits of Indenture...............87
Section 14.19 Acceptance of Trust.................87
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES ................................88
Section 15.01 Purposes of Meetings................88
Section 15.02 Call of Meetings by Trustee.........88
Section 15.03 Call of Meetings by Company or
Securityholders.....................88
Section 15.04 Person Entitled to Vote at Meeting..89
Section 15.05 Regulations for Meeting.............89
<PAGE> 56
INDENTURE, dated as of _______ __, ____, between U.S.
Home Corporation, a Delaware corporation, and IBJ Whitehall Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises
and the acquisition 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 any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Rules of Construction
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(c) 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 hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and
transactions.
<PAGE> 57
Section 1.02 Definitions
Capitalized terms used herein will have the following
respective meanings when used herein:
"Acquisition Debt" means Indebtedness of any Person existing at the
time such Person became a Subsidiary of the Company (or such Person is
merged into the Company or one of the Company's Subsidiaries) or assumed in
connection with the acquisition of assets from any such Person (other than
assets acquired in the ordinary course of business of the Company and its
Subsidiaries), including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary
of the Company (but excluding Indebtedness of such Person which is
extinguished, retired or repaid in connection with such Person becoming a
Subsidiary of the Company).
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control
with, such Person. For purposes of this Indenture, each executive officer
and director of the Company and each Restricted Subsidiary will be an
Affiliate of the Company. In addition, for purposes of this Indenture,
control of a 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. Notwithstanding the foregoing,
the term "Affiliate" will not include, with respect to the Company or any
Restricted Subsidiary which is a Wholly Owned Subsidiary of the Company,
any Restricted Subsidiary which is a Wholly Owned Subsidiary of the
Company.
"Affiliate Transaction" has the meaning set forth in Section 6.17(a)
hereof.
"Agent" means any Registrar or Paying Agent.
"Asset Sale" for any Person means the sale, lease, conveyance or other
disposition (including, without limitation, by merger, consolidation or
sale and leaseback transaction, and whether by operation of law or
otherwise) of any of that Person's assets (including, without limitation,
the sale or other disposition of Capital Stock of any Subsidiary of such
Person, whether by such Person or such Subsidiary), whether owned on the
Issue Date of Securities of any series or subsequently acquired in one
transaction or a series of related transactions, in which such Person
and/or its Subsidiaries receive cash and/or other consideration (including,
without limitation, the unconditional assumption of Indebtedness of such
Person and/or its Subsidiaries) having an aggregate Fair Market Value of
$5,000,000 or more as to such transaction or series of related
transactions; provided, however, (i) sales of homes and sales of mortgages
on homes in the ordinary course of business consistent with past practices
will not constitute Asset Sales, (ii) sales, leases, conveyances or other
dispositions, including, without limitation, exchanges or swaps, of real
estate or other assets in the ordinary course of business consistent with
past practices will not constitute Asset Sales, (iii) sales, leases,
<PAGE> 58
sale-leasebacks or other dispositions of amenities and other improvements
at the Company's or its Subsidiaries' communities in the ordinary course of
business consistent with past practices will not constitute Asset Sales,
and (iv) transactions between the Company and any of its Restricted
Subsidiaries which are Wholly Owned Subsidiaries, or among such Restricted
Subsidiaries which are Wholly Owned Subsidiaries of the Company will not
constitute Asset Sales.
"Asset Sale Offer Date" has the meaning set forth in Section 6.11(c)
hereof.
"Asset Sale Office Price has the meaning set forth in Section 6.11(c)
hereof.
"Bankruptcy Law" means title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of a Person or any
authorized committee of the board of directors of such Person.
"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" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however
designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such
Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means any obligation of
such Person to pay rent or other amounts under a lease that is required to
be capitalized for financial reporting purposes in accordance with GAAP,
and the amount of such obligation will be the capitalized amount thereof
determined in accordance with GAAP.
"Change of Control" means any of the following: (i) the sale, lease,
conveyance or other disposition of all or substantially all of the
Company's assets as an entirety or substantially as an entirety to any
Person or group of Persons (within the meaning of Section 13(d)(3) of the
Exchange Act) in one or a series of transactions; provided that a
transaction where the holders of all classes of Common Equity of the
Company immediately prior to such transaction own, directly or indirectly,
<PAGE> 59
50 percent or more of the aggregate voting power of all classes of Common
Equity of such Person or group immediately after such transaction will not
be a Change of Control, (ii) the acquisition by the Company and/or any of
its Subsidiaries of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company in one transaction or a series of
related transactions, (iii) the liquidation or dissolution of the Company;
provided that a liquidation or dissolution of the Company which is part of
a transaction or series of related transactions that does not constitute a
Change of Control under the "provided" clause of clause (i) above will not
constitute a Change of Control under this clause (iii) or (iv) any
transaction or a series of related transactions (as a result of a tender
offer, merger, consolidation or otherwise) that results in, or that is in
connection with, (a) any Person, including, a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) acquiring beneficial ownership (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company or of any Person that possesses
beneficial ownership (as determined in accordance with Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50 percent or more of the
aggregate voting power of all classes of Common Equity of the Company or
(b) less than 50 percent (measured by the aggregate voting power of all
classes) of the Common Equity of the Company being registered under Section
12(b) or 12(g) of the Exchange Act.
"Change of Control Offer" has the meaning set forth in Section 6.16(a)
hereof.
"Change of Control Payment Date" has the meaning set forth in Section
6.16(a) hereof.
" Change of Control Price" has the meaning set forth in Section
6.16(a) hereof.
" Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled (i) to vote in the election of directors of such
Person, or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means U.S. Home Corporation, a Delaware corporation, and any
successor thereof.
"Company Request or Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its
President, a Senior Vice President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
<PAGE> 60
"Consolidated Cash Flow Available for Fixed Charges" of the Company
means, for any period, the sum of the amounts for such period of (i)
Consolidated Net Income, plus (ii) Consolidated Income Tax Expense (other
than income tax expense (either positive or negative) attributable to
extraordinary and nonrecurring gains or losses on Asset Sales), plus (iii)
Consolidated Interest Expense, plus (iv) all depreciation, and without
duplication, amortization (including, without limitation, previously
capitalized interest amortized to cost of sales), plus (v) all other
noncash items reducing Consolidated Net Income for such period, minus (vi)
all other noncash items increasing Consolidated Net Income during such
period; all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ration" of the Company means, with
respect to any determination date, the ratio of (i) Consolidated Cash Flow
Available for Fixed Charges of the Company for the prior four full fiscal
quarters for which financial results have been reported immediately
preceding the determination date, to (ii) the aggregate Consolidated
Interest Incurred of the Company for the prior four fiscal quarters for
which financial results have been reported immediately preceding the
determination date.
"Consolidated Income Tax Expense" of the Company for any period means
the income tax expense of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of the Company for any period means
the Interest Expense of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Incurred" of the Company for any period means
the Interest Incurred of the Company and its Restricted Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income " of the Company for any period means the
aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that there will be excluded from such net
income (to the extent otherwise included therein), without duplication: (i)
the net income (or loss) of any Person (other than a Restricted Subsidiary)
in which any Person (including, without limitation, an Unrestricted
Subsidiary) other than the Company has an ownership interest, except to the
extent that any such income has actually been received by the Company or
any Restricted Subsidiary in the form of dividends or similar distributions
during such period, (ii) except to the extent includible in the
Consolidated Net Income pursuant to the foregoing clause (i), the net
income (or loss) of any Person that accrued prior to the date that (a) such
Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (b) the assets of
such Person are acquired by the Company or any of its Restricted
Subsidiaries, (iii) the net income of any Restricted Subsidiary to the
extent that (but only so long as) the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of that income is
<PAGE> 61
not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary during such period,
(iv) in the case of a successor to the Company by consolidation, merger or
transfer of its assets, any earnings of the successor prior to such merger,
consolidation or transfer of assets and (v) the gains (but not losses)
resulting from (a) the acquisition of securities issued by the Company or
extinguishment of Indebtedness of the Company, (b) Asset Sales and (c)
other extraordinary items. Notwithstanding the foregoing, in calculating
Consolidated Net Income, the Company will be entitled to take into
consideration the tax benefits associated with any extraordinary loss, but
only to the extent such tax benefits are recognized by the Company.
Consolidated Net Income will exclude any noncash losses, whether or not
extraordinary, incurred in connection with the issuance of Capital Stock
(other than Disqualified Stock) in exchange for Indebtedness of the Company
or its Wholly Owned Subsidiaries which are Restricted Subsidiaries.
"Consolidated Tangible Net Assets" of the Company as of any date means
the total amount of assets of the Company and its Restricted Subsidiaries
(less applicable reserves) on a consolidated basis at the end of the fiscal
quarter immediately preceding such date, as determined in accordance with
GAAP, less: (i) Intangible Assets and (ii) appropriate adjustments on
account of minority interests of other Persons holding equity investments
in Restricted Subsidiaries, in the case of each of clauses (i) and (ii)
above as reflected on the consolidated balance sheet of the Company and its
Restricted Subsidiaries as of the end of the fiscal quarter immediately
preceding such date.
"Consolidated Tangible Net Worth" of the Company as of any date means
the stockholders' equity (including any Preferred Stock that is classified
as equity under GAAP, other than Disqualified Stock) of the Company and its
Restricted Subsidiaries on a consolidated basis at the end of the fiscal
quarter immediately preceding such date, as determined in accordance with
GAAP, less the amount of Intangible Assets reflected on the consolidated
balance sheet of the Company and its Restricted Subsidiaries as of the end
of the fiscal quarter immediately preceding such date.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 14.02 hereof or such other address as the
Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in Section 11.03
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
<PAGE> 62
"Defaulted Interest" has the meaning set forth in Section 3.07 hereof.
"Defeasance" has the meaning set forth in Section 11.02 hereof.
"Defeasance Series" has the meaning set forth in Section 11.01 hereof.
"Depository" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act
as Depository for such Securities as contemplated by Section 3.01.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to the final Maturity date of the Securities of any series;
provided that any Capital Stock which would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to
require the Company to repurchase or redeem such Capital Stock upon the
occurrence of a change of control occurring prior to the final Maturity of
the Securities will not constitute Disqualified Stock if the change of
control provisions applicable to such Capital Stock are no more favorable
to the holders of such Capital Stock than the provisions contained in
Section 6.16 hereof and such Capital Stock specifically provides that the
Company will not repurchase or redeem (or be required to repurchase or
redeem) any such Capital Stock pursuant to such provisions prior to the
Company's repurchase of Securities pursuant to Section 6.16 hereof.
"Disqualified Stock Dividend" of any Person means, for any dividend
payable with regard to Disqualified Stock issued by such Person, the amount
of such dividend multiplied by a fraction, the numerator of which is one
and the denominator of which is one minus the maximum statutory combined
federal, state and local income tax rate (expressed as a decimal number
between 1 and 0) then applicable to such Person.
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in Section 8.01(a)
hereof.
"Excess Proceeds" has the meaning set forth in Section 6.11(a) hereof.
"Excess Proceeds Offer" has the meaning set forth in Section 6.11(c)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
<PAGE> 63
"Existing Credit Facility" means the Second Amended and Restated
Credit Agreement, dated as of September 11, 1998, between the Company and
the lenders named therein and The First National Bank of Chicago, as Agent
(together with the documents related thereto (including, without
limitation, any guaranty agreements)), as such Existing Credit Facility may
be amended, restated, supplemented or otherwise modified from time to time,
and includes any facility extending the maturity of, increasing the total
commitment of, or restructuring (including, without limitation, the
inclusion of additional borrowers thereunder that are Subsidiaries of the
Company and whose obligations thereunder are guaranteed by the Company) all
or any portion of, the Indebtedness under such Existing Credit Facility or
any successor or replacement facilities and includes any facility with one
or more agents or lenders refinancing or replacing all or any portion of
the Indebtedness under such Existing Credit Facility or any successor
facilities.
"Existing Indebtedness" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Issue Date of Securities of
any series.
"Fair Market Value" with respect to any asset or property means the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the
Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depository for such Securities or a nominee
thereof.
" Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures
contract or other similar agreement or arrangement relating to interest
rates or foreign exchange rates.
"Holder" means a Person in whose name a Security is registered.
"Incur" means to, directly or indirectly, create, incur, assume,
guaranty, extend the maturity of, or otherwise become liable with respect
to any Indebtedness.
<PAGE> 64
"Indebtedness" of any Person at any date means, without duplication,
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto), other than
standby letters of credit issued for the benefit of, or surety and
performance bonds issued by, such Person in the ordinary course of
business, (iv) all obligations of such Person with respect to Hedging
Obligations (other than those that fix or cap the interest rate on variable
rate indebtedness otherwise permitted by this Indenture or that fix the
exchange rate in connection with indebtedness denominated in a foreign
currency and otherwise permitted by this Indenture and other than the
purchase of mortgage commitments in the ordinary course of business), (v)
all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, including, without limitation, all
conditional sale obligations of such Person and all obligations under any
title retention agreement (except trade payables and accrued expenses
incurred in the ordinary course of business), (vi) all Capitalized Lease
Obligations of such Person, (vii) all indebtedness of others secured by a
Lien on any asset of such Person, whether or not such indebtedness is
assumed by such Person, (viii) all indebtedness of others guaranteed by, or
otherwise the liability of, such Person to the extent of such guaranty or
liability, and (ix) all Disqualified Stock issued by such Person (the
amount of indebtedness represented by any Disqualified Stock will equal the
greater of the voluntary or involuntary liquidation preference plus accrued
and unpaid dividends). The amount of indebtedness of any Person at any date
will be (a) the outstanding balance at such date of all unconditional
obligations as described above, (b) the maximum liability of such Person
for any contingent obligations under clause (v) above and (c) in the case
of clause (vii) (if the indebtedness referred to therein is not assumed by
such Person), the lesser of the (A) Fair Market Value of all assets subject
to a Lien securing the indebtedness of others on the date that the Lien
attaches and (B) amount of the indebtedness secured.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the TIA that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of
particular series of Securities established as contemplated by Section 3.01
hereof upon receipt by the Trustee of an Opinion of Counsel in accordance
with Section 3.03 hereof.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, (i) qualified to
perform the task for which it has been engaged, and (ii) disinterested and
independent with respect to the Company, all of its Subsidiaries, and each
Affiliate of the Company and/or its Subsidiaries that is involved in the
Affiliate Transaction with respect to which such firm has been engaged.
<PAGE> 65
"Intangible Assets" of the Company means all unamortized debt discount
and expense, unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, write-ups of assets over their
carrying value at the end of the last fiscal quarter ended prior to the
Issue Date of the Securities of any series or the date of acquisition, if
acquired subsequent thereto, and all other items which would be treated as
intangibles on the consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with GAAP.
"Interest Expense" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for such Person (including, without
limitation, imputed interest included on Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to
letters of credit securing financial obligations and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales) and includes, with respect to the Company and
its Restricted Subsidiaries, without duplication (including duplication of
the foregoing items), all interest included as a component of cost of sales
for such period, and (ii) the amount of Disqualified Stock Dividends
recognized by the Company on any Disqualified Stock whether or not paid
during such period.
"Interest Incurred" of any Person for any period means, without
duplication, the aggregate amount of (i) interest which, in conformity with
GAAP, would be set opposite the caption "interest expense" or any like
caption on an income statement for such Person (including, without
limitation, imputed interest included on Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect to
letters of credit securing financial obligations and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization
of other financing fees and expenses, the interest portion of any deferred
payment obligation, amortization of discount or premium, if any, and all
other noncash interest expense other than interest and other charges
amortized to cost of sales) and includes, with respect to the Company and
its Restricted Subsidiaries, without duplication (including duplication of
the foregoing items), all capitalized interest for such period, all
interest attributable to discontinued operations for such period to the
extent not set forth on the income statement under the caption "interest
expense" or any like caption, and all interest actually paid by the Company
or a Restricted Subsidiary under any guaranty of Indebtedness (including,
without limitation, a guaranty of principal, interest or any combination
thereof) of any other Person during such period and (ii) the amount of
Disqualified Stock Dividends recognized by the Company on any Disqualified
Stock whether or not declared during such period.
"Interest Payment Date", when used with respect to a Security of any
series, means the Stated Maturity of an installment of interest on such
Security.
<PAGE> 66
"Investments" of any Person means (i) all investments by such Person
in any other Person in the form of loans, advances or capital
contributions, (ii) all guaranties of Indebtedness or other obligations of
any other Person by such Person, (iii) all purchases (or other acquisitions
for consideration) by such Person of Indebtedness, Capital Stock or other
securities of any other Person and (iv) all other items that would be
classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person determined in accordance with GAAP.
"Issue Date" means the date of original issuance of the Securities of
each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in New York, New York or at a Place of Payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a Place of Payment, payment shall be
made at that place on the next succeeding day that is not a Legal Holiday
and no interest shall accrue for the intervening period.
"Lien" means with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind upon or
in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including, without limitation, any
conditional sale or other title retention agreement, and any lease in the
nature thereof, any option or other agreement to sell, and any filing of,
or agreement to give, any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"Material Subsidiary" means any Subsidiary of the Company which
accounted for three percent or more of the Consolidated Tangible Net Assets
or Consolidated Cash Flow Available for Fixed Charges of the Company on a
consolidated basis for the fiscal year ending immediately prior to any
Default or Event of Default.
"Maturity", when used with respect to a Security of any series, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Net Proceeds" means cash (in U.S. dollars or freely convertible into
U.S. dollars) received by the Company or any Restricted Subsidiary from an
Asset Sale net of (i) (a) all brokerage commissions, investment banking
fees and all other fees and expenses (including, without limitation, fees
and expenses of counsel and investment bankers) related to such Asset Sale,
(b) provisions for all income and other taxes measured by or resulting from
such Asset Sale, (c) payments made to retire Indebtedness where payment of
<PAGE> 67
such Indebtedness is required in connection with such Asset Sale, (d)
amounts required to be paid to any Person (other than the Company or a
Restricted Subsidiary) owning a beneficial interest in the assets subject
to the Asset Sale and (e) appropriate amounts to be provided by the Company
or any Restricted Subsidiary thereof, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset
Sale and retained by the Company or any Restricted Subsidiary thereof, as
the case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related
to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as reflected in an
Officers' Certificate delivered to the Trustee, and (ii) all noncash
consideration received by the Company or any of its Restricted Subsidiaries
from such Asset Sale upon the liquidation or conversion of such
consideration into cash, without duplication, net of all items enumerated
in subclauses (a) through (e) of clause (i) hereof.
"Net Worth Amount" has the meaning set forth in Section 6.20(a)
hereof.
"Net Worth Offer" has the meaning set forth in Section 6.20(a) hereof.
"Net Worth Offer Date" has the meaning set forth in Section 6.20(a)
hereof.
"Net Worth Offer Price" has the meaning set forth in Section 6.20(a)
hereof.
"Non-Recourse Indebtedness"means Indebtedness of the Company or a
Restricted Subsidiary for which (i) the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific
property identified in the instruments evidencing or securing such
Indebtedness and such property was acquired with the proceeds of such
Indebtedness or such Indebtedness was Incurred within 90 days after the
acquisition of such property and (ii) no other assets of the Company or
such Restricted Subsidiary may be realized upon in collection of principal
or interest on such Indebtedness.
"Officer" means the Chairman of the Board, the President, any Senior
Vice President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Person's Chief Executive Officer (or Co-Chief
Executive Officer), Chief Operating Officer, Chief Financial Officer or
Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
<PAGE> 68
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities as to which the Defeasance has been
effected pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section
3.06 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
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, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of or any interest on any Securities of
any series.
<PAGE> 69
"Permitted Investment" of any Person means any Investment of such
Person in (i) direct obligations of the United States or any agency thereof
or obligations guaranteed by the United States or any agency thereof, in
each case maturing within 180 days of the date of acquisition thereof, (ii)
certificates of deposit maturing within 180 days of the date of acquisition
thereof issued by a bank, trust company or savings and loan association
which is organized under the laws of the United States or any state thereof
having capital, surplus and undivided profits aggregating in excess of $250
million and a Keefe Bank Watch Rating of C or better (or a similar rating
by any successor thereof), (iii) certificates of deposit maturing within
180 days of the date of acquisition thereof issued by a bank, trust company
or savings and loan association organized under the laws of the United
States or any state thereof other than banks, trust companies or savings
and loan associations satisfying the criteria in (ii) above; provided that
the aggregate amount of all certificates of deposit issued to the Company
at any one time by such bank, trust company or savings and loan association
will not exceed $100,000, (iv) commercial paper given the highest rating by
two established national credit rating agencies and maturing not more than
180 days from the date of the acquisition thereof, (v) repurchase
agreements or money-market accounts which are fully secured by direct
obligations of the United States or any agency thereof and (vi) in the case
of the Company and its Subsidiaries, any receivables or loans taken by the
Company or a Subsidiary in connection with the sale of any asset otherwise
permitted by this Indenture.
"Permitted Liens" means (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to
which appropriate reserves have been established or other provisions have
been made in accordance with GAAP, (ii) statutory Liens of landlords and
carriers', warehousemen's, mechanics', suppliers', materialmen's,
repairmen's or other Liens imposed by law and arising in the ordinary
course of business and with respect to amounts that, to the extent
applicable, either (a) are not yet delinquent or (b) are being contested in
good faith by appropriate proceedings and as to which appropriate reserves
have been established or other provisions have been made in accordance with
GAAP, (iii) Liens (other than any Lien imposed by the Employee Retirement
Income Security Act of 1974, as amended) incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, (iv) Liens
incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, progress payments,
government contracts and other obligations of like nature (exclusive of
obligations for the payment of borrowed money), in each case incurred in
the ordinary course of business of the Company and its Subsidiaries, (v)
attachment or judgment Liens not giving rise to a Default or an Event of
Default and which are being contested in good faith by appropriate
proceedings, (vi) easements, rights-of-way, restrictions and other similar
charges or encumbrances not materially interfering with the ordinary course
of business of the Company and its Subsidiaries, (vii) zoning restrictions,
licenses, restrictions on the use of real property or minor irregularities
in title thereto, which do not materially impair the use of such real
property in the ordinary course of business of the Company and its
Subsidiaries or the value of such real property for the purpose of such
business, (viii) leases or subleases granted to others not materially
<PAGE> 70
interfering with the ordinary course of business of the Company and its
Subsidiaries, (ix) purchase money mortgages (including, without limitation,
Capitalized Lease Obligations and purchase money security interests), (x)
Liens securing Refinancing Indebtedness; provided that such Liens only
extend to assets which are similar to the type of assets securing the
Indebtedness being refinanced and such refinanced Indebtedness was
previously secured by such similar assets, (xi) Liens securing Indebtedness
of the Company and its Restricted Subsidiaries; provided that the aggregate
amount of Indebtedness secured by Liens (other than Non-Recourse
Indebtedness secured by Liens) will not exceed 40 percent of Consolidated
Tangible Net Assets, (xii) any interest in or title of a lessor to property
subject to any Capitalized Lease Obligations incurred in compliance with
the provisions of this Indenture, (xiii) Liens existing on the Issue Date
for Securities of any series, including, without limitation, Liens securing
Existing Indebtedness, (xiv) any option, contract or other agreement to
sell an asset; provided such sale is not otherwise prohibited under this
Indenture, (xv) Liens securing Non-Recourse Indebtedness of the Company or
a Restricted Subsidiary thereof, (xvi) Liens on property or assets of any
Restricted Subsidiary securing Indebtedness of such Restricted Subsidiary
owing to the Company or one or more Restricted Subsidiaries, (xvii) Liens
securing Indebtedness of an Unrestricted Subsidiary, (xviii) any right of a
lender or lenders to which the Company or a Restricted Subsidiary may be
indebted to offset against, or appropriate and apply to the payment of,
such Indebtedness any and all balances, credits, deposits, accounts or
monies of the Company or a Restricted Subsidiary with or held by such
lender or lenders and (xix) any pledge or deposit of cash or property in
conjunction with obtaining surety and performance bonds and letters of
credit required to engage in constructing on-site and off-site improvements
required by municipalities or other governmental authorities in the
ordinary course of business of the Company, by the Company or any
Restricted Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest on
the Securities of that series are payable as specified as contemplated by
Section 3.01 hereof.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
<PAGE> 71
"Refinancing Indebtedness" means Indebtedness that refunds, refinances
or extends any Existing Indebtedness or other Indebtedness permitted to be
Incurred by the Company or its Restricted Subsidiaries pursuant to the
terms of this Indenture, but only to the extent that (i) the Refinancing
Indebtedness is subordinated to the Securities of any series to the same
extent as the Indebtedness being refunded, refinanced or extended, if at
all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended, or
(b) after the maturity date of the Securities of such series, (iii) the
portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the Maturity date of the Securities of such series
has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Weighted
Average Life to Maturity of the portion of the Indebtedness being refunded,
refinanced or extended that is scheduled to mature on or prior to the
Maturity date of the Securities of such series, (iv) such Refinancing
Indebtedness is in an aggregate amount that is equal to or less than the
aggregate amount then outstanding under the Indebtedness being refunded,
refinanced or extended, (v) such Refinancing Indebtedness is Incurred by
the same Person that initially Incurred the Indebtedness being refunded,
refinanced or extended, except that the Company may Incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Restricted
Subsidiary and (vi) such Refinancing Indebtedness is Incurred within 180
days before or after the Indebtedness being refunded, refinanced or
extended is so refunded, refinanced or extended; provided that Refinancing
Indebtedness shall include the amount of any Indebtedness under the
Existing Credit Facility which is Incurred within 180 days before or after
the repayment of an equal amount of Indebtedness under the Existing Credit
Facility which was Incurred pursuant to Section 6.13(a) hereof.
"Registrar" has the meaning set forth in Section 3.05 hereof.
"Regular Record Date" for the interest payable on any Security of any
series on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"Restricted Investment" with respect to any Person means any
Investment (other than any Permitted Investment) by such Person in any (i)
of its Affiliates, (ii) executive officer or director of any Affiliate of
such Person, or (iii) other Person other than a Restricted Subsidiary which
is a Wholly Owned Subsidiary of the referent Person; provided, however,
that with respect to the Company and its Restricted Subsidiaries, any loan
or advance to an executive officer or director of the Company or a
Subsidiary will not constitute a Restricted Investment provided such loan
or advance is made in the ordinary course of business consistent with past
practices, and, if such loan or advance exceeds $100,000 (other than a
readily marketable mortgage loan not exceeding $500,000), such loan or
advance has been approved by the Board of Directors of the Company or a
disinterested committee thereof.
<PAGE> 72
"Restricted Payment with respect to any Person means (i) the
declaration of any dividend or the making of any other payment or
distribution of cash, securities or other property or assets in respect of
such Person's Capital Stock (except that a dividend payable solely in
Capital Stock (other than Disqualified Stock) of such Person will not
constitute a Restricted Payment), (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of such
Person's Capital Stock or any other payment or distribution made in respect
thereof (other than payments or distributions excluded from the definitions
of Restricted Payment in clause (i) above), either directly or indirectly,
(iii) any Restricted Investment and (iv) any principal payment, redemption,
repurchase, defeasances or other acquisition or retirement of any
Indebtedness of any Unrestricted Subsidiary or of Indebtedness of the
Company or its Restricted Subsidiaries which is subordinated in right of
payment to the Securities of any series (provided, however, that the
principal payment, redemption, repurchase, defeasance or other acquisition
or retirement of any such subordinated Indebtedness by the Company or any
Restricted Subsidiary on its scheduled final Maturity date or on any other
scheduled date for the payment of any installment of principal thereof
(whether pursuant to a sinking fund, mandatory redemption or otherwise)
shall not be a Restricted Payment); provided, further, that with respect to
the Company and its Subsidiaries, Restricted Payments will not include (a)
any payment or other obligation described in clause (i), (ii) or (iii)
above made to or on behalf or for the benefit of the Company or any of its
Restricted Subsidiaries which are Wholly Owned Subsidiaries by any of the
Company's Subsidiaries, or (b) any proportionate payment in respect of
minority interests in Restricted Subsidiaries of the Company to the extent
that the payment constitutes a return of capital that was not included in
the Company's shareholders' equity or a dividend or similar distribution
not included in determining the Company's Consolidated Net Income, or (c)
any principal payment, redemption, repurchase, defeasance or other
acquisition or retirement of Indebtedness of the Company or its Restricted
Subsidiaries which is subordinated to the Securities if the consideration
therefor consists solely of, or is the proceeds from, Indebtedness
subordinated to the Securities to the same extent as the Indebtedness being
paid, redeemed, repurchased, defeased or otherwise acquired or retired, or
(d) any principal payment, redemption, repurchase, defeasance or other
acquisition or retirement of Indebtedness or Capital Stock of such Person
or its Subsidiaries if the consideration therefor consists solely of
Capital Stock (other than Disqualified Stock) of such Person, or the
proceeds from such sale of such Capital Stock, or (e) any loans or advances
by the Company or any Restricted Subsidiary to Unrestricted Subsidiaries
which in an aggregate amount at any one time outstanding do not exceed
$50,000,000.
"Restricted Subsidiary" means each of the Subsidiaries of the Company
which is not an Unrestricted Subsidiary.
" SEC" means the Securities and Exchange Commission, and any successor
thereto.
<PAGE> 73
"Securities" has the meaning set forth in the first recital of this
Indenture and more particularly means any securities of any series
authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section 3.05 hereof.
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity", when used with respect to any Security of any
series or any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of which at least
a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly beneficially owned by such Person, and
(ii) any entity other than a corporation of which such Person directly or
indirectly beneficially owns at least a majority of the Common Equity.
"Successor" has the meaning set forth in Section 7.01(a) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include the Person who is then the Trustee
hereunder.
"Trust Officer" means any Senior Vice President, Vice President,
Assistant Vice President, Assistant Secretary or Assistant Treasurer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means (i) any security that is (a) a
direct obligation of the United States for the payment of which the full
faith and credit of the United States is pledged or (b) an obligation of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
<PAGE> 74
"Unrestricted Subsidiary" means each of the Subsidiaries of the
Company so designated by a Board Resolution. The Board of Directors of the
Company may designate an Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that (i) any such redesignation will be deemed to be
an Incurrence by the Company and its Restricted Subsidiaries of the
Indebtedness (if any) of such redesignated Subsidiary for purposes of the
covenant set forth in Section 6.13 hereof as of the date of such
redesignation and (ii) immediately after giving effect to such
redesignation and the Incurrence of any such additional Indebtedness, the
Company and its Restricted Subsidiaries could Incur $1.00 of additional
Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained
in the covenant set forth in Section 6.13(a) hereof. Subject to the
foregoing, the Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary; provided that (i)
all previous Investments by the Company and its Restricted Subsidiaries in
such Restricted Subsidiary will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for
Restricted Payments under the covenant set forth in Section 6.12 hereof and
(ii) immediately after giving effect to such designation and reduction of
amounts available for Restricted Payments under the covenant set forth in
Section 6.12 hereof, the Company and its Restricted Subsidiaries could
Incur $1.00 of additional Indebtedness under the Consolidated Fixed Charge
Coverage Ratio contained in the covenant set forth in Section 6.13(a)
hereof. Any such designation or redesignation by the Board of Directors of
the Company will be evidenced to the Trustee by the filing with the Trustee
of a Board Resolution giving effect to such designation or redesignation
and an Officers' Certificate certifying that such designation or
redesignation complied with the foregoing conditions and setting forth the
underlying calculations of such Officers' Certificate.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof, at any date, the number of years obtained
by dividing (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including, without limitation, payment
at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness or portion thereof.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary, of
which 100 percent of the Common Equity (except for directors' qualifying
shares or certain minority interests owned by other Persons solely due to
local law requirements that there be more than one stockholder, but which
interest is not in excess of what is required for such purpose) is owned
directly by such Person or through one or more other Wholly Owned
Subsidiaries of such Person, or (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns all of the Common Equity of
such entity.
<PAGE> 75
Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
an Officers' Certificate or a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistent herewith, be
determined by the Officers executing such Security as evidenced by their
execution of such Security. If temporary Securities of any series are
issued as Global Securities as permitted by Section 3.04 hereof, the form
thereof shall also be established as provided in the previous sentence. If
the form of Securities of any series is established by action taken
pursuant to an Officers' Certificate or a Board Resolution, a copy thereof
shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.03 hereof for the authentication
and delivery of such Securities. If all of the Securities of any series
established by action taken pursuant to an Officers' Certificate or a Board
Resolution are not to be issued at one time, it shall not be necessary to
deliver a copy thereof at the time of issuance of each Security of such
series, but such Officers' Certificate or Board Resolution shall be
delivered at or prior to the time of issuance of the first Security of such
series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods 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.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
<PAGE> 76
This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Global Security is
exchangeable for Securities registered in the name of a Person other than
the Depository or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances. Every Security delivered upon registration of transfer of,
or in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY
As Trustee
By................................
Authorized Officer
<PAGE> 77
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, set forth,
or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, which, in each
case, shall be deemed incorporated herein by this reference and made a part
hereof but only with respect to the series of Securities established
pursuant to such Board Resolution, Officers' Certificate or supplemental
indenture, prior to the issuance of Securities of any series of the
following:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 4.07 or 13.05 hereof and except for any
Securities which, pursuant to Section 3.03 hereof, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such date
or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) 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 any
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any 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 actual days elapsed over a 365 or
366-day year;
<PAGE> 78
(6) the place or places, if any, other than or in
addition to New York, New York, where the principal of and
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the same series may be surrendered for
exchange and, if different from the location specified in Section
14.02 hereof, 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;
(7) the period or periods within, the price or prices at
and the terms and conditions upon, which Securities of the series
may be redeemed or purchased, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or
repurchase Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series
shall be redeemed or repurchased, in whole or in part, pursuant to
such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and interest on any Securities of the
series shall be payable if other than the currency of the United
States and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of
"Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities of
the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of or
interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount of the Securities
of any series, the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration
of the Maturity thereof;
<PAGE> 79
(14) if applicable, that the Securities of the series
shall be defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depository or
Depositories for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.05 hereof in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of,
a Person other than the Depository for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(17) if other than the Trustee, the identity of each
Paying Agent and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
3.03 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
<PAGE> 80
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company. The Company shall
pay the reasonable fees and expenses of any authenticating agent.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Officers' Certificate or
Board Resolutions as permitted by Sections 2.01 and 3.01 hereof, 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:
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution or an Officers'
Certificate as permitted by Section 2.01 hereof, that such form or
forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to an Officers' Certificate or a Board Resolution
as permitted by Section 3.01 hereof, that such terms have been
established in conformity with the provisions of this Indenture;
and
(3) that such Securities, 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 legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities.
<PAGE> 81
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate or Board Resolution otherwise required pursuant to
Section 3.01 hereof or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at the time of issuance of
each Security of such series, but such documents shall be delivered at or
prior to the time of issuance of the first Security of such series.
Notwithstanding the immediately preceding sentence, any subsequent request
by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by
the Company that, as of the date of such request, the statements made in
the Opinion of Counsel delivered pursuant to this Section 3.03 shall be
true and correct as if made on such date.
The Trustee shall have the right to refuse to
authenticate and deliver such Securities if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or officers of
the Trustee shall determine that such action would expose the Trustee to
personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder 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 3.09 hereof together with a Company
Order (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or 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.
<PAGE> 82
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the
Securities of each series including any Global Security (the "Security
Register") in an office or agency of the Company in a Place of Payment (the
"Registrar") where, subject to Section 3.05(c) hereof and such reasonable
regulations as the Company may prescribe, Securities may be presented for
registration of transfer or for exchange. The Company may appoint one or
more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
<PAGE> 83
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its 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 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) 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.
(b) In case the Company, pursuant to Article 7 hereof,
will be consolidated or merged with or into any other Person or will
convey, transfer or lease substantially all of its properties and assets to
any Person, and the Successor resulting from such consolidation, or
surviving such merger, or into which the Company will have been merged, or
the Person which will have received a conveyance, transfer or lease as
aforesaid, will have executed an indenture supplemental hereto with the
Trustee pursuant to Article 7 hereof, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer or
lease may, from time to time, at the request of the Successor, be exchanged
for other Securities executed in the name of the Successor with such
changes in phraseology and form as may be appropriate, but otherwise in
substance and of like tenor as the Securities surrendered for such exchange
<PAGE> 84
and of like principal amount; and the Trustee, upon receipt of an Officers'
Certificate from the Successor, will authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor, at the option of the Holders but without expense to them, will
provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any
series are to be issued in whole or in part in the form of one or more
Global Securities, authenticate and deliver one or more Global Securities
that will (i) represent and will be denominated in an amount equal to the
aggregate outstanding principal amount of the Securities to be represented
by such Global Security or Securities, (ii) be registered in the name of
the Depository for such Global Security or Securities or the nominee of
such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
<PAGE> 85
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security shall be
cancelled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
<PAGE> 86
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, instruct the Paying
Agent to pay such Security.
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security 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 6.02 hereof.
<PAGE> 87
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date 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 (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money (except as otherwise
specified pursuant to Section 3.01 hereof for the Securities of
such series) 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
mailed, first class postage prepaid, to each Holder of Securities
of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date
and notice shall be considered given whether or not received by
the Holder. If notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor have been so mailed,
such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of the securities
exchange on which such Securities may be listed, if any, and upon
such notice as may be required by such exchange, if, after written
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> 88
The provisions of this Section 3.07 may be applicable to
any series of Securities pursuant to Section 3.01 hereof (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 3.01 hereof).
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, 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 and 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 accompanied by an
Officers' Certificate authorizing such cancellation, and 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 destroyed (subject to the applicable provisions of record
retention laws) and the Trustee shall deliver a certificate of destruction
to the Company.
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
<PAGE> 89
ARTICLE 4
REDEMPTION
Section 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 15 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding
Securities of a series are to be redeemed, the Trustee will select the
Securities of such series to be redeemed pro rata or by lot or by any other
method the Trustee deems fair and appropriate but only in integral
multiples of $1,000. The particular Securities of a series to be redeemed
will be selected, unless otherwise provided herein, not less than 20 nor
more than 60 days prior to the redemption date by the Trustee from the
Outstanding Securities of such series not previously called for redemption.
(b) The Trustee will promptly notify the Company in
writing of the Securities of such series selected for redemption and, in
the case of any Security of a series selected for partial redemption, the
principal amount thereof to be redeemed but not in integral multiples of
less than $1,000. Provisions of this Indenture that apply to Securities of
a series called for redemption also apply to portions of Securities of a
series called for redemption.
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose
Securities are to be redeemed.
<PAGE> 90
(b) The notice will identify the Securities of the series
to be redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series
is being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must
be surrendered to the Paying Agent at the address specified in
such notice to collect the redemption price;
(vi) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund
or optional redemption (whichever is applicable), if such is the
case;
(viii) the aggregate principal amount of
Securities that are being redeemed; and
(ix) that, unless the Company defaults in making
the redemption payment, interest on Securities called for
redemption ceases to accrue on and after the redemption date, and
the only remaining right of the Holders of such Securities is to
receive payment of the redemption price upon surrender to the
Paying Agent of the Securities redeemed.
(c) At the Company's written request, the Trustee will
give the notice required in this Section 4.04 in the Company's name and at
its expense.
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
<PAGE> 91
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption
date, the Company will deposit with the Trustee or with the Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.04 hereof) money sufficient to pay the
redemption price of, and accrued and previously unpaid interest on, all
Securities of such series to be redeemed on that date, and the Trustee will
remit the redemption price to Holders entitled thereto. The Trustee or the
Paying Agent will return to the Company any money not required for that
purpose.
(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be
redeemed (whether or not such Securities are presented for payment) will
cease to accrue on the applicable redemption date. If any Security of such
series called for redemption is not so paid upon surrender because of the
failure of the Company to comply with Section 4.06(a) hereof, then interest
will be paid on the unpaid principal from the last Interest Payment Date
until such principal is paid in full at the rate determined pursuant to
Section 3.01 hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
<PAGE> 92
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
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 5.02 Satisfaction of Sinking Fund Payments with Securities
Subject to Section 5.03 hereof, 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 (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a 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 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.
<PAGE> 93
Section 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' 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 Officers'
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 5.02 hereof 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 4.03
hereof 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 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
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 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
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 Company shall not instruct the Trustee to 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 as negotiated by the Company, 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.
<PAGE> 94
ARTICLE 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest
on, the Securities of each series on the dates and in the manner provided
herein and in the Securities. In the event the Company is not the Paying
Agent, principal and interest will be considered paid on the date due if
the Trustee or Paying Agent holds on that date money deposited by the
Company designated for and sufficient to pay all principal and interest
then due. In the event the Company is the Paying Agent, principal and
interest will be considered paid on the date actual payment is mailed, or
otherwise sent or given, to the Holders entitled to such payments.
(b) The Company will pay interest on overdue principal at
the applicable interest rate on the Securities of each series as determined
in accordance with Section 3.01 hereof.
Section 6.02 Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment
for any series of Securities, in New York, New York, an office or agency
(which may be an office of the Trustee or the Registrar) where Securities
of such series may be presented or surrendered for payment, where
Securities of that series may be presented for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of
the Securities of such 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 fails to maintain any such required office or agency or fails 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.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Securities of each series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York 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.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in
accordance with this Section 6.02.
<PAGE> 95
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original
principal amount of the Securities of any series is Outstanding, the
Company will (i) remain subject to the requirements of Section 13 or 15(d)
of the Exchange Act whether or not it is required to do so by the
provisions thereof and will file with the SEC all periodic reports as may
be required thereunder and (ii) file with the SEC, and the Trustee within
15 days after the Company is required to file the same with the SEC, copies
of the periodic reports which the Company may be required to file with the
SEC pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. The
Company will also make such reports available to the Holders, prospective
purchasers of the Securities of any such series, securities analysts and
broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the
original principal amount of the Securities of any series is Outstanding
and (ii) the Company is not required to file with the SEC such reports and
other information referred to in Section 6.03(a) hereof, the Company will
furnish to the Trustee (A) within 120 days after the end of each fiscal
year, annual reports containing the information required to be contained in
Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B)
within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to
be contained in the Quarterly Report on Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form and (C) promptly from the time after the
occurrence of an event which would be required to be reported in the
Current Report on Form 8-K if the Company was required to file such Report,
such other reports containing information required to be contained in the
Current Report on Form 8-K promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other
provisions of TIA Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its
own Paying Agent with respect to any series of Securities, it will, not
less than one Business Day before each due date of the principal of or
interest on any of the Securities of any series, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums will be paid
to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure to so act.
<PAGE> 96
(b) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will, not less
than one Business Day before each due date of the principal of or interest
on, any Securities of any series, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the principal of or
interest on Securities of such series in trust for the benefit of the
Holders of such series of Securities and the Trustee entitled thereto until
such sums will be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any Default by the Company in the
making of any payment of principal or interest;
(iii) 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; and
(iv) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
(d) 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.
<PAGE> 97
(e) 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 interest on
any Security of any series and remaining unclaimed for two years after such
principal 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 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 a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do know of a Default
or an Event of Default, the Officers' Certificate will describe the Default
or Event of Default and the action the Company is taking or proposes to
take with respect thereto.
(b) The Company will give prompt written notice to the
Trustee of the occurrence of any Default or Event of Default.
Section 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
<PAGE> 98
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien (other than a Permitted Lien) upon the property of the
Company, in each case except to the extent the failure to do so would not
have, in the judgment of management, a material adverse effect on the
Company and its Subsidiaries taken as a whole.
Section 6.08 Insurance
The Company will maintain and will cause each of its
Restricted Subsidiaries to maintain (either in the name of the Company or
in such Restricted Subsidiary's own name) with third party insurance
companies or pursuant to self-insurance, (i) insurance on all their
respective properties, (ii) public liability insurance against claims for
personal injury or death as a result of the use of any products sold by it
and (iii) insurance coverage against other business risks, in each case, in
at least such amounts and against at least such other risks (and with such
risk retention) as are usually and prudently insured against in the same
general area by companies engaged in the same or a similar business.
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, 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 has been enacted.
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse affect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
<PAGE> 99
Section 6.11 Disposition of Proceeds of Asset Sales
(a) Subject to the provisions set forth in Section 7.01
hereof, the Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, make any Asset Sale unless (i) the Company or
the Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value for the
shares or assets sold or otherwise disposed of (which will be determined in
good faith by the Board of Directors of the Company); provided, that the
aggregate Fair Market Value of the consideration received from any Asset
Sale that is not in the form of cash or cash equivalents will not, when
aggregated with the Fair Market Value of all other non-cash consideration
received by the Company and its Restricted Subsidiaries from all previous
Asset Sales since the Issue Date for Securities of any series that has not
been converted into cash or cash equivalents, exceed five percent of the
Consolidated Tangible Net Assets of the Company at the time of the Asset
Sale under consideration, and (ii) the Company will apply the aggregate Net
Proceeds received by the Company or any Restricted Subsidiary from all
Asset Sales occurring subsequent to such Issue Date as follows: (A) to
repay any outstanding Indebtedness of the Company that is not subordinated
to the Securities, or other Indebtedness of the Company, or to the payment
of any Indebtedness of any Restricted Subsidiary, in each case within one
year after such Asset Sale or (B) to replace the properties and assets that
were the subject of the Asset Sale or in properties and assets that (as
determined by the Board of Directors of the Company, whose determination
will be conclusive) will be used in the businesses existing on the Issue
Date of Securities of such series of the Company and its Restricted
Subsidiaries or in businesses reasonably related thereto within one year
after such Asset Sale. The amount of such Net Proceeds neither used to
repay the Indebtedness described above nor used or invested as set forth in
the preceding sentence constitutes "Excess Proceeds."
(b) Notwithstanding Section 6.11(a)(ii) hereof, to the
extent the Company or any of its Restricted Subsidiaries receives
securities or other noncash property or assets as proceeds of an Asset
Sale, the Company will not be required to make any application of such
noncash proceeds required by Section 6.11(a) hereof until it receives cash
or cash equivalent proceeds from a sale, repayment, exchange, redemption or
retirement of or extraordinary dividend or return of capital on such
noncash property. Any amounts deferred pursuant to the preceding sentence
will be applied in accordance with Section 6.11(a) hereof when cash
proceeds are thereafter received from a sale, repayment, exchange,
redemption or retirement of an extraordinary dividend or return of capital
on such noncash property.
<PAGE> 100
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company will so notify the Trustee in writing by
delivery of an Officers' Certificate and will offer to purchase from all
Holders (an "Excess Proceeds Offer"), and will purchase from Holders
accepting such Excess Proceeds Offer on the date fixed for the closing of
such Excess Proceeds Offer (the "Asset Sale Offer Date"), the maximum
principal amount (expressed as a multiple of $1,000) of Securities of each
series that may be purchased out of the Excess Proceeds, at an offer price
(the "Asset Sale Offer Price") in cash in an amount equal to 100 percent of
the principal amount thereof plus accrued and unpaid interest, if any, to
the Asset Sale Offer Date, in accordance with the procedures set forth in
this Section 6.11. To the extent that the aggregate amount of Securities of
each series tendered pursuant to an Excess Proceeds Offer is less than the
Excess Proceeds relating thereto, then the Company may use the Excess
Proceeds which exceed the aggregate amount of Securities of each series
tendered pursuant to such Excess Proceeds Offer for general corporate
purposes. Upon completion of an Excess Proceeds Offer, the amount of Excess
Proceeds will be reset at zero.
(d) Within 30 days after the date on which the amount of
Excess Proceeds equals $5,000,000 or more, the Company (with written notice
to the Trustee) or the Trustee at the Company's request (and at the expense
of the Company) will send or cause to be sent by first-class mail, postage
prepaid, to all Holders on the date such Excess Proceeds equals $5,000,000,
at their respective addresses appearing in the Security Register, a notice,
prepared by the Company advising the Holders of such series, of such
occurrence and of such Holders' rights arising as a result thereof. Such
notice will contain all instructions and materials necessary to enable
Holders to tender their Securities of any series to the Company. Such
notice, which will govern the terms of the Excess Proceeds Offer, will
state:
(i) that the Excess Proceeds Offer is being made pursuant to this
Section 6.11 and the length of time such Excess Proceeds Offer will remain
open;
(ii) that the Holder has the right to require the Company to
repurchase such Holder's Securities of such series at the Asset Sale Offer
Price;
(iii) that any Security of such series not tendered will continue to
accrue interest;
(iv) that any Security of such series accepted for payment pursuant to
the Excess Proceeds Offer will cease to accrue interest on the Asset Sale
Offer Date;
(v) that the Asset Sale Offer Date will be no earlier than 45 days nor
later than 60 days from the date such notice is mailed;
<PAGE> 101
(vi) that Holders electing to have a Security of such series purchased
pursuant to any Excess Proceeds Offer will be required to surrender the
Security of such series, with the appropriate form on the Security of such
series completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
termination of the Excess Proceeds Offer;
(vii) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Excess Proceeds Offer, or such longer
period as may be required by law, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Security of such series the Holder delivered for purchase and a statement
that such Holder is withdrawing its election to have the Security of such
series purchased;
(viii) that Holders whose Securities of such series are purchased only
in part will be issued Securities of the same series, Maturity date,
interest rate and Issue Date equal in principal amount to the unpurchased
portion of the Securities of such series surrendered; and
(ix) information concerning the details of the Excess Proceeds Offer
and the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum
will include (A) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the
most recent subsequently filed Quarterly Report on Form 10-Q and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials relating to the Excess
Proceeds Offer (or corresponding successor reports) (or in the event the
Company is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 6.03(b) hereof);
provided that the Company may at its option incorporate by reference any
such filed reports in the notice, (B) a description of material
developments in the Company's business subsequent to the date of the latest
of such reports and (C) if material, appropriate pro forma financial
information.
(e) In the event the aggregate principal amount of
Securities of any series surrendered by Holders exceeds the amount of
Excess Proceeds, the Company will select the Securities of each series to
be purchased on a pro rata basis from all Securities of any series so
surrendered, with such adjustments as may be deemed appropriate by the
Company so that only Securities of any series in denominations of $1,000,
or integral multiples thereof, will be purchased. To the extent that the
Excess Proceeds remaining are less than $1,000, the Company may use such
Excess Proceeds for general corporate purposes. Holders whose Securities of
any series are purchased only in part will be issued new Securities of the
same series, Maturity date, interest rate and Issue Date equal in principal
amount to the unpurchased portion of the Securities of such series
surrendered.
<PAGE> 102
(f) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make an Excess Proceeds Offer.
Notwithstanding the foregoing, if an Excess Proceeds Offer is made, the
Company will pay for Securities of any series tendered for purchase in
accordance with the terms of this Section 6.11.
(g) Not later than one Business Day prior to the Asset
Sale Offer Date in connection with which the Excess Proceeds Offer is being
made, the Company will (i) accept for payment Securities of any series or
portions thereof tendered pursuant to the Excess Proceeds Offer (on a pro
rata basis if required pursuant to Section 6.11(e) hereof), (ii) deposit
with the Paying Agent money sufficient, in immediately available funds, to
pay the purchase price of all Securities of any series or portions thereof
so accepted and (iii) deliver to the Paying Agent an Officers' Certificate
identifying the Securities of such series or portions thereof accepted for
payment by the Company. The Paying Agent will promptly after acceptance
mail or deliver to Holders of Securities of any series so accepted payment
in an amount equal to the Asset Sale Offer Price of the Securities of such
series purchased from each such Holder, and the Company will execute and
upon receipt of an Officers' Certificate of the Company the Trustee will
promptly authenticate and mail or deliver to such Holder a new Security of
the same series, Maturity date, interest rate and Issue Date equal in
principal amount to any unpurchased portion of the Security surrendered.
Any Securities of such series not so accepted will be promptly mailed or
delivered by the Paying Agent at the Company's expense to the Holder
thereof. The Company will publicly announce the results of the Excess
Proceeds Offer on the Asset Sale Offer Date. For purposes of this Section
6.11(g), the Company will choose a Paying Agent which will not be the
Company or a Subsidiary thereof. Any excess cash held by the Trustee after
the expiration of the Excess Proceeds Offer will be returned to the
Company.
(h) Any Excess Proceeds Offer will be conducted by the
Company in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder, if applicable.
(i) Whenever Excess Proceeds are received by the Company,
and prior to the allocation of such Excess Proceeds pursuant to this
Section 6.11, such Excess Proceeds will be set aside by the Company in a
separate account to be held in trust for the benefit of the Holders;
provided, however, that in the event the Company will be unable to set
aside such Excess Proceeds in a separate account because of provisions of
applicable law or of any agreement, indenture, document or instrument
relating to Existing Indebtedness or Refinancing Indebtedness with respect
thereto, the Company will not be required to set aside such Excess
Proceeds.
<PAGE> 103
Section 6.12 Limitations on Restricted Payments
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any Restricted Payment, directly or
indirectly, after the Issue Date of Securities of any series if at the time
of such Restricted Payment:
(i) the amount of such Restricted Payment (the
amount of such Restricted Payment, if other than in cash,
will be determined by the Board of Directors of the
Company), when added to the aggregate amount of all
Restricted Payments made after the Issue Date of the
Securities of any series, exceeds the sum of: (1)
$100,000,000, plus (2) 50 percent of the Company's
Consolidated Net Income accrued during the period (taken
as a single period) since January 1, 1997 (or, if such
aggregate Consolidated Net Income is a deficit, minus 100
percent of such aggregate deficit), plus (3) the net cash
proceeds derived from the issuance and sale of Capital
Stock of the Company and its Restricted Subsidiaries that
is not Disqualified Stock (other than a sale to a
Subsidiary of the Company) after the Issue Date of
Securities of any series but only to the extent not
applied under clause (d) of the definition of "Restricted
Payment" set forth in Section 1.02 hereof, plus (4) 100
percent of the principal amount of any Indebtedness of
the Company or a Restricted Subsidiary that is converted
into or exchanged for Capital Stock of the Company that
is not Disqualified Stock, plus (5) 100 percent of the
aggregate amounts received by the Company or any
Restricted Subsidiary upon the sale, disposition or
liquidation (including by way of dividends) of any
Investment but only to the extent (x) not included in
Section 6.12(a)(i)(2) above and (y) that the making of
such Investment constituted a Restricted Investment made
pursuant to this Section 6.12(a)(i), plus (6) 100 percent
of the principal amount of, or if issued at a discount
the accreted value of, any Indebtedness or other
obligation that is the subject of a guaranty by the
Company which is released after the Issue Date of
Securities of any series, but only to the extent that the
granting of such guaranty constituted a "Restricted
Payment" under the definition set forth in Section 1.02
hereof; or
(ii) the Company would be unable to incur an
additional $1.00 of Indebtedness under the Consolidated
Fixed Charge Coverage Ratio contained in the covenant set
forth in Section 6.13(a) hereof; or
(iii) a Default or Event of Default has occurred and
is continuing or occurs as a consequence thereof.
<PAGE> 104
(b) Notwithstanding the foregoing, the provisions of this
Section 6.12 will not prevent: (i) the payment of any dividend within 60
days after the date of declaration thereof if the payment thereof would
have complied with the limitations of this Indenture on the date of
declaration or (ii) the retirement of shares of the Company's Capital Stock
or the Company's or a Subsidiary of the Company's Indebtedness for, in
exchange for or out of the proceeds of a substantially concurrent sale
(other than a sale to a Subsidiary of the Company) of, other shares of its
Capital Stock (other than Disqualified Stock).
Section 6.13 Limitations on Additional Indebtedness
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to Incur any additional Indebtedness (other than
Indebtedness between the Company and its Restricted Subsidiaries which are
Wholly Owned Subsidiaries or among such Restricted Subsidiaries which are
Wholly Owned Subsidiaries), including Acquisition Debt, unless, after
giving effect thereto or the application of the proceeds therefrom, the (i)
Company's Consolidated Fixed Charge Coverage Ratio on the date thereof
would be at least 2.0 to 1.0; and (ii) ratio of the Company's Indebtedness
(excluding Non-Recourse Indebtedness) to Consolidated Tangible Net Worth on
the date thereof is not greater than 2.25 to 1.0.
(b) Notwithstanding the foregoing, the provisions of this
Indenture will not prevent: (i) in addition to the Indebtedness permitted
to be Incurred under clauses (ii), (iii) and (iv) of this sentence and
Indebtedness permitted to be Incurred under Section 6.13(a) hereof, the
Company and/or any Restricted Subsidiary from Incurring (A) Refinancing
Indebtedness, (B) Non-Recourse Indebtedness and (C) Indebtedness Incurred
for working capital purposes or to finance the acquisition, holding or
development of property by the Company and its Restricted Subsidiaries
(including, without limitation, the financing of any related interest
reserve) in the ordinary course of business in an aggregate amount at any
one time outstanding not to exceed $130,000,000 (excluding any Indebtedness
referred to in Section 6.13(a) hereof and subclauses (i)(A), (i)(B), (ii),
(iii) and (iv) of this Section 6.13(b)), less the amount of any
Indebtedness repaid pursuant to Section 6.11(a)(ii)(A) hereof, (ii)
Unrestricted Subsidiaries from Incurring Indebtedness, (iii) the Company
and its Restricted Subsidiaries from Incurring Indebtedness under any
deposits made to secure performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, progress statements, government
contracts and other obligations of like nature (exclusive of the obligation
for the payment of borrowed money), in each case Incurred in the ordinary
course of business of the Company or the Restricted Subsidiary consistent
with past practice and (iv) Restricted Subsidiaries from guaranteeing
Indebtedness of the Company or another Restricted Subsidiary; provided that
the tangible net assets of all Restricted Subsidiaries guaranteeing
Indebtedness of the Company or other Restricted Subsidiaries at the end of
the fiscal quarter immediately preceding the date of Incurring any such
guaranty, as determined in accordance with GAAP, shall not exceed 10% of
the Company's Consolidated Tangible Net Assets.
<PAGE> 105
Section 6.14 Restrictions on Restricted Subsidiary Indebtedness
The Company will not permit any of its Restricted
Subsidiaries to, directly or indirectly, Incur any additional Indebtedness
after the Issue Date of Securities of any series other than: (i)
Refinancing Indebtedness, (ii) Non-Recourse Indebtedness, (iii)
Indebtedness to the Company, (iv) any deposits made to secure performance
of tenders, bids, leases, statutory obligations, surety and appeal bonds,
progress statements, government contracts, and other obligations of like
nature (exclusive of the obligation for the payment of borrowed money), in
each case Incurred in the ordinary course of business of the Restricted
Subsidiary and (v) any guaranty of Indebtedness of the Company or another
Restricted Subsidiary; provided that the tangible net assets of all
Restricted Subsidiaries guaranteeing Indebtedness of the Company or other
Restricted Subsidiaries at the end of the fiscal quarter immediately
preceding the date of Incurring any such guaranty, as determined in
accordance with GAAP, shall not exceed 10% of the Company's Consolidated
Tangible Net Assets.
Section 6.15 Limitations and Restrictions on Capital Stock of
Subsidiaries
The Company will not permit any of its Restricted
Subsidiaries to issue, or permit to be outstanding at any time, Preferred
Stock or any other Capital Stock constituting Disqualified Stock.
Section 6.16 Change of Control
(a) Following the occurrence of any Change of Control,
the Company will so notify the Trustee in writing by delivery of an
Officers' Certificate and will offer to purchase (a "Change of Control
Offer") from all Holders, and will purchase from Holders accepting such
Change of Control Offer on the date fixed for the closing of such Change of
Control Offer (the "Change of Control Payment Date"), the Outstanding
Securities of each series at an offer price (the "Change of Control Price")
in cash in an amount equal to 101 percent of the aggregate principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Payment Date in accordance with the procedures set forth in this Section
6.16.
(b) Within 30 days after the date of any Change of
Control, the Company (with written notice to the Trustee) or the Trustee at
the Company's request (and at the expense of the Company), will send or
cause to be sent by first class mail, postage prepaid, to all Holders on
the date of the Change of Control at their respective addresses appearing
in the Security Register a notice, prepared by the Company advising the
Holders of such series, of the occurrence of such Change of Control and of
the Holders' rights arising as a result thereof. Such notice will contain
all instructions and materials necessary to enable Holders to tender their
Securities of such series to the Company. Such notice, which will govern
the terms of the Change of Control Offer, will state:
<PAGE> 106
(i) that the Change of Control Offer is being made pursuant to Section
6.16(a) hereof and the length of time the Change of Control Offer will
remain open;
(ii) that the Holder has the right to require the Company to
repurchase such Holder's Securities of such series at the Change of Control
Price;
(iii) that any Security of such series not tendered will continue to
accrue interest;
(iv) that any Security of such series accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest on the Change of
Control Payment Date;
(v) that the Change of Control Payment Date will be no earlier than 45
days nor later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such series purchased
pursuant to any Change of Control Offer will be required to surrender the
Security of such series, with the appropriate form on the Security of such
series completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice prior to
termination of the Change of Control Offer;
(vii) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Change of Control Offer, or such longer
period as may be required by law, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Security of such series the Holder delivered for purchase and a statement
that such Holder is withdrawing its election to have the Security of such
series purchased;
(viii) that Holders which elect to have their Securities purchased
only in part will be issued new Securities of the same series, Maturity
date, interest rate and Issue Date in a principal amount equal to the
unpurchased portion of the Securities of such series surrendered; and
(ix) information concerning the date and details of the Change of
Control and the business of the Company which the Company in good faith
believes will enable such Holders to make an informed decision (which at a
minimum will include (A) the most recently filed Annual Report on Form 10-K
(including audited consolidated financial statements) of the Company, the
most recent subsequently filed Quarterly Report on Form 10-Q and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials relating to the Change of
Control Offer (or corresponding successor reports) (or in the event the
Company is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 6.03(b) hereof);
provided that the Company may at its option incorporate by reference any
such filed reports in the notice, (B) a description of material
developments in the Company's business subsequent to the date of the latest
of such reports, and (C) if material, appropriate pro forma financial
information).
<PAGE> 107
(c) In the event of a Change of Control Offer, the
Company will only be required to accept Securities of each series in
denominations of $1,000 or integral multiples thereof.
(d) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make a Change of Control Offer.
Notwithstanding the foregoing, if a Change of Control Offer is made, the
Company will pay for Securities of each series tendered for purchase in
accordance with the terms of this Section 6.16.
(e) Not later than one Business Day prior to the Change
of Control Payment Date in connection with which the Change of Control
Offer is being made, the Company will (i) accept for payment Securities of
each series or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent money sufficient, in immediately
available funds, to pay the purchase price of all Securities of each series
or portions thereof so accepted and (iii) deliver to the Paying Agent an
Officers' Certificate identifying the Securities of each series or portions
thereof accepted for payment by the Company. The Paying Agent will promptly
after acceptance mail or deliver to Holders of Securities of each series so
accepted payment in an amount equal to the Change of Control Price of the
Securities of each series purchased from each such Holder, and the Company
will execute and, upon receipt of an Officers' Certificate of the Company,
the Trustee will promptly authenticate and mail or deliver to such Holder a
new Security of the same series, Maturity date, interest rate and Issue
Date equal in principal amount to any unpurchased portion of the Security
of such series surrendered. Any Securities of each series not so accepted
will be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on the Change of Control Payment
Date. For purposes of this Section 6.16(e), the Company will choose a
Paying Agent which will not be the Company or a Subsidiary thereof. Any
excess cash held by the Trustee after the expiration of the Change of
Control Offer will be returned to the Company.
(f) Any Change of Control Offer will be conducted by the
Company in compliance with applicable law, including, without limitation,
Section 14(e) of the Exchange Act and Rule 14e-1 thereunder.
<PAGE> 108
Section 6.17 Limitations on Transactions With Affiliates
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any loan, advance, guaranty or capital
contribution to, or for the benefit of, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or for the benefit
of, or purchase or lease any property or assets from, or enter into or
amend any contract, agreement or understanding with, or for the benefit of,
(i) any Affiliate of the Company or any Affiliate of the Company's
Restricted Subsidiaries or (ii) any Person (or any Affiliate of such
Person) holding 10 percent or more of the Common Equity of the Company or
any of its Restricted Subsidiaries (each an "Affiliate Transaction"),
except on terms that are no less favorable to the Company or the relevant
Restricted Subsidiary, as the case may be, than those that could have been
obtained in a comparable transaction on an arms' length basis from a Person
that is not an Affiliate.
(b) The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Affiliate Transaction involving
or having a value of more than $10,000,000, unless in each case such
Affiliate Transaction has been approved by a majority of the disinterested
members of the Company's Board of Directors.
(c) The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into an Affiliate Transaction involving
or having a value of more than $20,000,000 unless the Company has delivered
to the Trustee an opinion of an Independent Financial Advisor to the effect
that the transaction is fair to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view.
(d) Notwithstanding the foregoing, an Affiliate
Transaction will not include (i) any contract, agreement or understanding
with, or for the benefit of, or plan for the benefit of, employees or
directors of the Company or its Subsidiaries (in their capacity as such)
that has been approved by the Company's Board of Directors, (ii) Capital
Stock issuances to members of the Board of Directors, officers or
employees, of the Company or its Subsidiaries pursuant to plans approved by
the stockholders of the Company, (iii) any Restricted Payment otherwise
permitted under Section 6.12 hereof, (iv) any transaction between the
Company or a Restricted Subsidiary and another Restricted Subsidiary, (v)
any contract, agreement or understanding as in effect on the Issue Date of
Securities of any series or any amendment thereto or any transaction
contemplated thereby (including any amendment thereto) or (vi) loans or
advances by the Company or any Restricted Subsidiary to Unrestricted
Subsidiaries which in an aggregate amount at any one time outstanding do
not exceed $50,000,000.
<PAGE> 109
Section 6.18 Limitations on Liens
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, Incur, assume or suffer to exist any
Liens, other than Permitted Liens, on any of its or their assets, property,
income or profits therefrom unless contemporaneously therewith or prior
thereto all payments due hereunder and under the Securities of any series
are secured on an equal and ratable basis with the obligation or liability
so secured until such time as such obligation or liability is no longer
secured by a Lien.
Section 6.19 Limitations on Restrictions on Distributions from Restricted
Subsidiaries
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, assume or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction (other
than encumbrances or restrictions imposed by law or by judicial or
regulatory action or by provisions in leases or other agreements that
restrict the assignability thereof) on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its
Capital Stock or any other interest or participation in, or measured by,
its profits, owned by the Company or any of its other Restricted
Subsidiaries, or pay interest on or principal of any Indebtedness owed to
the Company or any of its other Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its other Restricted Subsidiaries, or
(iii) transfer any of its properties or assets to the Company or any of its
other Restricted Subsidiaries, except for encumbrances or restrictions
existing under or by reason of (a) applicable law, (b) covenants or
restrictions contained in Existing Indebtedness as in effect on the Issue
Date of Securities of any series, (c) any restrictions or encumbrances
arising in connection with the Existing Credit Facility; provided that any
restrictions and encumbrances relating to any extension or renewal of the
Existing Credit Facility are not more restrictive than those in the
Existing Credit Facility being extended or renewed, (d) any restrictions or
encumbrances arising in connection with Refinancing Indebtedness; provided
that any restrictions and encumbrances of the type described in this clause
(d) that arise under such Refinancing Indebtedness are not more restrictive
than those under the agreement creating or evidencing the Indebtedness
being refunded or refinanced, (e) any agreement restricting the sale or
other disposition of property securing Indebtedness permitted by this
Indenture if such agreement does not expressly restrict the ability of a
Subsidiary of the Company to pay dividends or make loans or advances, (f)
reasonable and customary borrowing base covenants set forth in credit
agreements evidencing Indebtedness otherwise permitted by this Indenture
which covenants restrict or limit the distribution of revenues or sale
proceeds from real estate or a real estate project based upon the amount of
Indebtedness outstanding on such real estate or real estate project and the
value of some or all of the remaining real estate or the project's
remaining assets and (g) any restrictions under any instrument creating or
evidencing any Acquisition Debt that was permitted to be Incurred pursuant
to this Indenture and the Securities of any series and which (1) only apply
to assets that were subject to such restrictions and encumbrances prior to
<PAGE> 110
the acquisition of such assets by the Company or any of its Restricted
Subsidiaries and (2) were not created in connection with, or in
contemplation of, such acquisition, and any restrictions replacing those
permitted by this clause (g) which are not more restrictive than, and do
not extend to any Persons or assets other than the Persons or assets
subject to, the restrictions and encumbrances so replaced.
Section 6.20 Maintenance of Consolidated Tangible Net Worth
(a) In the event the Consolidated Tangible Net Worth of
the Company for any two consecutive fiscal quarters is less than
$115,000,000, within 30 days after the end of each such period the Company
will so notify the Trustee in writing by delivery of an Officers'
Certificate and will offer to purchase from all Holders (a "Net Worth
Offer"), and will purchase from Holders accepting such Net Worth Offer on
the date fixed for the closing of such Net Worth Offer (the "Net Worth
Offer Date"), ten percent of the original Outstanding principal amount of
the Securities of each series (the "Net Worth Amount") at an offer price
(the "Net Worth Offer Price") in cash in an amount equal to 100 percent of
the principal amount thereof plus accrued and unpaid interest, if any, to
the Net Worth Offer Date, in accordance with the procedures set forth in
this Section 6.20. To the extent that the aggregate amount of Securities of
each series tendered pursuant to a Net Worth Offer is less than the Net
Worth Amount relating thereto, then the Company may use the excess of the
Net Worth Amount over the amount of Securities of each series tendered, or
a portion thereof, for general corporate purposes.
(b) In the event the Consolidated Tangible Net Worth of
the Company for any two consecutive fiscal quarters is less than
$115,000,000, within 30 days after the end of such period, the Company
(with written notice to the Trustee) or the Trustee at the Company's
request (and at the expense of the Company) will send or cause to be sent
by first-class mail, postage prepaid, to all Holders on the date of the end
of the second such consecutive fiscal quarter, at their respective
addresses appearing in the Security Register, a notice, prepared by the
Company advising the Holders of such series, of such occurrence and of each
Holder's rights arising as a result thereof. Such notice will contain all
instructions and materials necessary to enable Holders to tender their
Securities of each series to the Company. Such notice, which will govern
the terms of the Net Worth Offer, will state:
(i) that the Net Worth Offer is being made pursuant to Section 6.20(a)
hereof and the length of time such Net Worth Offer will remain open;
(ii) that the Holder has the right to require the Company to
repurchase such Holder's Securities of such series at the Net Worth Offer
Price;
(iii) that any Security of such series not tendered will continue to
accrue interest;
<PAGE> 111
(iv) that any Security of such series accepted for payment pursuant to
the Net Worth Offer will cease to accrue interest on the Net Worth Offer
Date;
(v) that the Net Worth Offer Date will be no earlier than 45 days nor
later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such series purchased
pursuant to any Net Worth Offer will be required to surrender the Security
of such series, with the appropriate form on the Security of such series
completed, to the Company, a depositary, if appointed by the Company, or a
Paying Agent at the address specified in the notice prior to termination of
the Net Worth Offer;
(vii) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Net Worth Offer, or such longer period as
may be required by law, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Security
the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have the Security of such series purchased;
(viii) that Holders whose Securities of such series are purchased only
in part will be issued Securities of the same series, Maturity date,
interest rate and Issue Date equal in principal amount to the unpurchased
portion of the Securities of such series surrendered; and
(ix) information concerning the period and details of the events
requiring the Net Worth Offer and the business of the Company which the
Company in good faith believes will enable such Holders to make an informed
decision (which at a minimum will include (A) the most recently filed
Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly
Report on Form 10-Q and any Current Report on Form 8-K of the Company filed
subsequent to such Quarterly Report, other than Current Reports describing
Asset Sales otherwise described in the offering materials relating to the
Net Worth Offer (or corresponding successor reports) (or in the event the
Company is not required to prepare any of the foregoing Forms, the
comparable information required pursuant to Section 6.03(b) hereof);
provided that the Company may at its option incorporate by reference any
such filed reports in the notice, (B) a description of material
developments in the Company's business subsequent to the date of the latest
of such reports, and (C) if material, appropriate pro forma financial
information).
<PAGE> 112
(c) In the event the aggregate principal amount of
Securities of such series surrendered by Holders exceeds the Net Worth
Amount, the Company will select the Securities of such series to be
purchased on a pro rata basis from all Securities of such series so
surrendered, with such adjustments as may be deemed appropriate by the
Company so that only Securities of any series in denominations of $1,000,
or integral multiples thereof, will be purchased. To the extent that the
Net Worth Amount remaining is less than $1,000, the Company may use such
Net Worth Amount for general corporate purposes. Holders whose Securities
of such series are purchased only in part will be issued new Securities of
the same series, Maturity date, interest rate and Issue Date equal in
principal amount to the unpurchased portion of the Securities of such
series surrendered.
(d) The Company will not, and will not permit any
Restricted Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make a Net Worth Offer. Notwithstanding the
foregoing, if a Net Worth Offer is made, the Company will pay for
Securities of any series tendered for purchase in accordance with the terms
of this Section 6.20.
(e) Not later than one Business Day prior to the Net
Worth Offer Date in connection with which the Net Worth Offer is being
made, the Company will (i) accept for payment Securities of each series or
portions thereof tendered pursuant to the Net Worth Offer (on a pro rata
basis if required pursuant to Section 6.20(c) above), (ii) deposit with the
Paying Agent money sufficient, in immediately available funds, to pay the
purchase price of all Securities of each series or portions thereof so
accepted and (iii) deliver to the Paying Agent an Officers' Certificate
identifying the Securities of each series or portions thereof accepted for
payment by the Company. The Paying Agent will promptly after acceptance
mail or deliver to Holders of Securities of such series so accepted payment
in an amount equal to the Net Worth Offer Price of the Securities of such
series purchased from each such Holder, and the Company will execute and
the Trustee will promptly authenticate and mail or deliver to such Holder a
new Security of the same series, Maturity date, interest rate and Issue
Date equal in principal amount to any unpurchased portion of the Security
of such series surrendered. Any Securities of such series not so accepted
will be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the
results of the Net Worth Offer on the Net Worth Offer Date. For purposes of
this Section 6.20(e), the Company will choose a Paying Agent which will not
be the Company or a Subsidiary thereof. Any excess cash held by the Trustee
after the expiration of the Net Worth Offer will be returned to the
Company.
(f) Any Net Worth Offer will be conducted by the Company
in compliance with applicable law, including, without limitation, Section
14(e) of the Exchange Act and Rule 14e-1 thereunder, if applicable.
<PAGE> 113
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially
all of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing, (iii) immediately after giving
effect to such transaction and the use of any net proceeds therefrom on a
pro forma basis, the Consolidated Tangible Net Worth of the Company or the
Successor, as the case may be, would be at least equal to the Consolidated
Tangible Net Worth of the Company immediately prior to such transaction and
(iv) the Consolidated Fixed Charge Coverage Ratio contained in Section
6.13(a) hereof of the Company or the Successor, as the case may be,
immediately after giving effect to such transaction, would be such that the
Company or the Successor, as the case may be, would be entitled to Incur at
least $1 of additional Indebtedness under such Consolidated Fixed Charge
Coverage Ratio test.
(b) The Company will deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture comply with this Indenture.
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
<PAGE> 114
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events (whatever
the reason for such Event of Default and whether it will 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):
(i) the failure by the Company to pay interest on
any Security of that series when the same becomes due and payable
and the continuance of any such failure for a period of 30 days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes due
and payable at Maturity, upon acceleration or otherwise (including
the failure to make payment pursuant to a Change of Control Offer;
an Excess Proceeds Offer or a Net Worth Offer);
(iii) the failure by the Company to make any
sinking fund payment when the same becomes due and payable by the
terms of a Security of that series and Article 5 hereof;
(iv) the failure by the Company to comply with any
of its agreements or covenants in, or provisions of, the Security
of that series or this Indenture (other than an agreement or
covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series) and such failure
continues for the period and after the notice specified below;
<PAGE> 115
(v) the acceleration of any Indebtedness (other
than Non-Recourse Indebtedness) for borrowed money or guarantees
thereof of the Company or any of its Subsidiaries that has an
outstanding principal amount of $10,000,000 or more in the
aggregate; provided that, in the event any such acceleration is
withdrawn or otherwise rescinded within a period of five days
after such acceleration by the holders of such Indebtedness, any
Event of Default under this Section 8.01(a)(v) will be deemed to
be cured and any acceleration hereunder will be deemed withdrawn
or rescinded;
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect
of Indebtedness (other than Non-Recourse Indebtedness) for
borrowed money or guarantees thereof of the Company or any of its
Subsidiaries with an outstanding aggregate amount of $10,000,000
or more within five days of such principal or interest payment
becoming due and payable (after giving effect to any applicable
grace period set forth in the documents governing such
Indebtedness);
(vii) a final judgment or judgments that exceed
$10,000,000 or more in the aggregate, for the payment of money,
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment
or judgments is not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(viii) the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit
of its creditors;
(ix) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary as debtor in an involuntary
case,
(B) appoints a Custodian of the Company
<PAGE> 116
or any Material Subsidiary or a Custodian for
all or substantially all of the property of
the Company or any Material Subsidiary, or
(C) orders the liquidation of the Company or
any Material Subsidiary,
and the order or decree remains unstayed and in effect for
60 days; or
(x) any other Event of Default provided with respect
to Securities of that
series.
(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives
written notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding
Securities of all series affected thereby notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." If such a Default is cured within such time period, it ceases.
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with
respect to the Company specified in clause (viii) or (ix) of Section
8.01(a) hereof) occurs and is continuing, the Trustee (after receiving
indemnities from the Holders to its satisfaction) by notice to the Company,
or the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of such series by notice to the Company and the
Trustee, may declare all Outstanding Securities of such series to be due
and payable immediately. Upon such declaration, the amounts due and payable
on the Securities of such series, as determined in Section 8.02(b) hereof,
will be due and payable immediately. If an Event of Default specified in
clause (viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will
ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee
and the Company may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
or interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
<PAGE> 117
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent
of the principal amount of the Securities of such series (or in the case of
a default under Section 8.01(a)(ii) or (iv) hereof resulting from a breach
of the covenant set forth in Section 6.16 hereof, 101 percent of the
principal amount of the Securities of such series) will become due and
payable plus accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal or interest on the Securities of any
series or to enforce the performance of any provision of the Securities of
any series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
Section 8.05 Control by Majority
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
<PAGE> 118
Section 8.06 Limitations on Suits
(a) A Holder may pursue a remedy with respect to this
Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee written notice
of a continuing Event of Default with respect to the Securities of
that series;
(ii) the Holder(s) of at least 25 percent in
aggregate principal amount of all of the Outstanding Securities of
that series make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(v) during such 60-day period the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of such series do not give the Trustee a direction
inconsistent with the request.
(b) A Holder of a Security of any series may not use this
Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder.
Section 8.08 Collection Suit by Trustee
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
<PAGE> 119
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Company, its creditors or property and
will be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any
Custodian 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 consents to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to 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 9.07 hereof.
Nothing contained herein will 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 8.10 Priorities
(a) In the event the Trustee collects any money pursuant
to this Article 8, it will pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07
hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally
entitled thereto.
(b) The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
<PAGE> 120
Section 8.12 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 the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations will be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates
or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof,
the Trustee will examine the certificates and opinions to
determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 9.01(c) does not limit the effect
of Section 9.01(b) hereof;
<PAGE> 121
(ii) the Trustee will not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the Trustee will not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 9.05 hereof or
when exercising any other trust or power conferred upon the
Trustee under this Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law. Subject to Sections 9.03
and 9.07 hereof, all money received by the Trustee will, until applied as
herein provided, be held in trust for the payment of principal and interest
on the Securities.
(f) The Trustee shall not be required to give any bond or
surety in respect of the exercise of its powers and performance of its
duties hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in
acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated
in the document 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 determines to make such further
inquiry or investigation, it will be entitled to examine the
books, records, and premises of the Company, personally or by
agent or attorney;
<PAGE> 122
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate. The Trustee may
consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will 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;
(iii) the Trustee may act through agents and will not
be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds deposited
with it or in an account within its dominion and control;
(iv) the Trustee will not be liable for any action
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by
this Indenture; and
(v) unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b)The Trustee will be under no obligation to exercise
and may refuse to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders 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.
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication. The immunities and exemptions from
liability of the Trustee hereunder shall extend to its directors, officers,
employees and agents.
<PAGE> 123
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series or a breach of the Change of
Control covenant, the Trustee may withhold such notice if and so long as a
committee of its Trust Officers in good faith determines that withholding
the notice is in the interests of such Holders.
Section 9.06 Reports by Trustee to Holders
(a)Within 60 days after each May 15 beginning with May
15, 1998, the Trustee will mail to Holders a brief report dated as of such
reporting date that complies with TIA Section 313(a); provided, however, if
no event described in TIA Section 313(a) has occurred within such calendar
year, no report need be transmitted. The Trustee also will comply with TIA
Sections 313(b) and 313(c).
(b)A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on
which the Securities of any series are listed. The Company will notify the
Trustee when the Securities of any series are listed on any stock exchange.
Section 9.07 Compensation and Indemnity
(a)The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) 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, without
limitation, the reasonable compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
(iii) to indemnify the Trustee and its agents
for, and to hold them harmless against, any loss,
liability or expense incurred without gross negligence or
bad faith on their part, arising out of or in connection
with the acceptance or administration of this trust,
including the costs and expenses of defending themselves
against any claim or liability in connection with the
exercise or performance of any of their powers or duties
hereunder.
<PAGE> 124
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a Lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee will become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section
9.08.
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the Outstanding Securities of any series
may remove the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 9.10
hereof;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company will promptly
appoint a successor Trustee.
(d) If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least ten percent in principal
amount of the Outstanding Securities of any series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 9.10
hereof, any Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
<PAGE> 125
(f) A successor Trustee will deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Thereupon
the resignation or removal of the retiring Trustee will become effective,
and the successor Trustee will have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee will mail a notice
of its succession to the Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 9.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 9.08, the Company's
obligations under Section 9.07 hereof will continue for the benefit of the
retiring Trustee.
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee
consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee; provided
that in the case of a transfer of all or substantially all of its corporate
trust business to another corporation, the transferee corporation expressly
assumes all of the Trustee's liabilities hereunder.
(b) In case any Securities have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, with the same
effect as if such successor Trustee had itself authenticated such
Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of
the United States, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trustee power, (ii) be
subject to supervision or examination by federal or state (or the District
of Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee is subject to TIA Section 310(b). If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 9.10, it
will resign immediately in the manner and with the effect specified in
Section 9.08 hereof.
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
<PAGE> 126
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of such series of Securities as
of the Regular Record Date of such Interest Payment Date;
and
(b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.02 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
<PAGE> 127
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities 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: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.20, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.20 inclusive, and any other
covenants specified in or pursuant to this Indenture) and 8.01(a)(x) shall
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
<PAGE> 128
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(x), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
ction 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 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 Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that 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, money in an amount, or (C) a combination thereof, in
each case 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 any such
other qualifying trustee) to pay and discharge, (1) the principal
of and interest on the Securities of such series on the respective
Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable
in accordance with the terms of this Indenture and such
Securities; 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. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 4.02 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 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
<PAGE> 129
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date first set forth hereinabove, 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 the Outstanding 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 be the case if such deposit, Defeasance
and discharge were not to occur.
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
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 be the
case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred
and be continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default within
the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(viii) 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 3.01
hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been
complied with.
<PAGE> 130
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust 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 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company any money
or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it with respect to Outstanding Securities of any
Defeasible Series that are in excess of the amount thereof that was used to
pay the Securities of such series upon Maturity.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series by reason of any notification, 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 the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 11 with respect to Securities
of such series until such time as the Trustee or Paying Agent is permitted
to apply all money held in trust pursuant to Section 11.05 hereof with
respect to Securities of such series in accordance with this Article 11;
provided, however, that if the Company makes any payment of principal of or
interest on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
<PAGE> 131
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) 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
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 hereof, and (ii) Securities 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, as provided in Section 6.04 hereof) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year,or
(3) 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 (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in cash sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
<PAGE> 132
(ii) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, 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 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest 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 13
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities in addition to
certificated Securities;
(iv) to make any change that does not adversely affect the legal
rights hereunder of any Holder of a Security of any series;
<PAGE> 133
(v) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(vi) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (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);
(vii) to change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities; provided that any such
addition, 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;
(viii) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01 hereof;
(ix) to secure the Securities pursuant to the requirements of Section
6.18 hereof;
(x) to evidence and provide for the acceptance of appointment
hereunder of 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 9.08 hereof;
(xi) to supplement any of the provisions of the Indenture to such
extent as shall be necessary to implement the provisions of Article 11
hereof or discharge of any series of Securities pursuant to Sections 12.01,
12.02 and 12.03 hereof; provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series or any
other series in any material respect; or
(xii) to comply with the qualification of this Indenture under the
TIA.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be contained therein. After an amendment or waiver
under this Section 13.01 becomes effective, the Company will mail to the
Holders of each Security affected thereby a notice describing the amendment
or waiver. Any failure of the Company to mail such notice, will not,
however, affect the validity of any such supplemental indenture.
<PAGE> 134
Section 13.02 Supplemental Indentures With Consent of Holders
(a) Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each series
affected by such amendment.
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.06 hereof, the Trustee will join with the
Company in the execution of such supplemental indenture.
(c) It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any
proposed amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange
offer for Securities). However, without the consent of each Holder of an
Outstanding Security affected thereby, an amendment or waiver under this
Section 13.02 may not:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security 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), or
(ii) reduce the percentage in principal amount
of the Outstanding Securities of any series, the consent
of whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences
provided for in this Indenture, or
<PAGE> 135
(iii) modify any of the provisions of this
Section or Section 8.07, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify the ranking or priority of the
Securities in a manner adverse to the Holders.
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required
from such Holder) may be subject to the requirement that such Holder has
been the Holder of record of any Securities of any series with respect to
which such consent is required or sought as of a date identified by the
Trustee in a notice furnished to Holders in accordance with the terms of
this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to such Holder's Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective. An amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any amendment or waiver. If the Company elects to fix a record date for
such purpose, the record date will be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
<PAGE> 136
pursuant to Section 10.02 hereof or (ii) such other date as the Company
will designate. If a record date is fixed, then notwithstanding the
provisions of Section 13.04(a) hereof, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, will be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent will be valid or effective
for more than 90 days unless consents from Holders of the principal amount
of Securities required hereunder for such amendment or waiver to be
effective have also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless
it is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
<PAGE> 137
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
Section 14.02 Notices
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
If to the Company:
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77252-2863
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2815
Attention: Corporate Trust Agency & Administration
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged by the Trustee's
transmission result report, if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
<PAGE> 138
(d) Any notice or communication to a Holder will be
mailed by first-class, postage-prepaid mail, return receipt requested, to
the Holder's address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee and each Agent at the same
time.
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
<PAGE> 139
The Company, with advance approval by the Trustee, will
fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Security held by a Depository
entitled under the procedures of such Depository to make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
in this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Persons who are such beneficial owners at the close of
business on such record date or their duly appointed proxy or proxies will
be entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other actions, whether or not such
Persons remain such beneficial owners after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action will be valid or effective if made, given or taken more than six
months after such record date.
Section 14.05 Proof of Execution of Instruments and Holding of Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds
to be recorded in such jurisdiction that the Person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other
officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where Securities
are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
(3) The ownership of Securities shall be proved
by the Securities Register for such Security or by a
certificate of the Registrar.
(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
<PAGE> 140
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) will
include:
(i) a statement that the Person making such
certificate or opinion has read such condition or covenant;
(ii) 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;
(iii) a statement that, in the opinion of such
Person, such Person has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has
been complied with.
<PAGE> 141
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise of
reasonable care should know that the same is erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, or other Persons or firms deemed appropriate by
such counsel, unless such counsel has actual knowledge that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may be an
employee of the Company), or firm of accountants, unless such Officer or
counsel, as the case may be, has actual knowledge that the certificate or
opinion or representations with respect to the accounting matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
<PAGE> 142
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent
and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 14.19 Acceptance of Trust
IBJ Whitehall Bank & Trust Company, the Trustee named
herein, hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
<PAGE> 143
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
(A) to give any notice to the Company or to the Trustee,
or to give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to
be taken by Holders pursuant to any of the provisions of this Indenture;
(B) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Section 9.08 hereof;
(C) to consent to the amendment of the provisions
contained herein and the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article 13 hereof; or
(D) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
Outstanding Securities under any other provision of this Indenture or under
applicable law.
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, 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 mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
<PAGE> 144
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
<PAGE> 145
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
-------------------------
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:
--------------------------
Name:
Title:
<PAGE> 146
Exhibit 4.2
FORM OF
--------------------------------------
SENIOR SUBORDINATED INDENTURE,
dated as of ______ __, ____,
between
U.S. HOME CORPORATION
and
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
<PAGE> 147
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
------- -----------------
310(a)(1).............................. 9.10
(a)(2)............................ 9.10
(a)(3)............................ N.A.
(a)(4)............................ N.A.
(b)............................... 9.08; 9.10
(c)............................... N.A.
311(a)................................. 9.11
(b)............................... 9.11
(c)............................... N.A.
312 (a)............................... 10.01; 10.02
(b)............................... 10.02; 14.03
(c)............................... 10.02
313 (a)............................... 9.06
(b)(1)............................ 9.06
(b)(2)............................ 9.06
(c)............................... 9.06
(d)............................... 9.06
314 (a)............................... 6.03
(b)............................... N.A.
(c)(1)............................ 14.07; 14.08
(c)(2)............................ 14.07; 14.08
(c)(3)............................ 14.08
(d)............................... N.A.
(e)............................... 14.08
(f)............................... N.A.
315 (a)............................... 9.01
(b)............................... 9.05
(c)............................... 9.01
(d)............................... 9.01
(e)............................... 8.11
316 (a)(last sentence)................ 8.05
(a)(1)(A)......................... 8.05
(a)(1)(B)......................... 8.04
(a)(2)............................ Not applicable
(b)............................... 8.07
317 (a)(1)............................ 8.08
(a)(2)............................ 8.09
(b)............................... 3.05
318 (a)............................... 14.01
N.A. means not applicable
Note: This cross-reference table will not, for any purpose,
be deemed to be a part of this Indenture.
<PAGE> 148
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Rules of Construction........................ 1
Section 1.02 Definitions.................................. 2
Acquisition Debt............................. 2
Affiliate.................................... 2
Affiliate Transaction........................ 2
Agent........................................ 2
Bankruptcy Law............................... 2
Board of Directors........................... 2
Board Resolution............................. 2
Business Day................................. 2
Capital Stock................................ 2
Capitalized Lease Obligations................ 3
Cash Equivalents............................. 3
Change of Control Offer...................... 4
Change of Control Payment Date............... 4
Change of Control Price...................... 4
Common Equity................................ 4
Company...................................... 4
Company Request or Company Order............. 4
Consolidated Net Income...................... 4
Consolidated Tangible Net Worth.............. 5
Corporate Trust Office of the Trustee........ 5
Covenant Defeasance.......................... 5
Custodian.................................... 5
Default...................................... 5
Defaulted Interest........................... 5
Defeasance................................... 5
Defeasible Series ........................... 5
Depository................................... 5
Designated Senior Indebtedness............... 5
Disqualified Stock........................... 6
DTC.......................................... 6
Event of Default............................. 6
Exchange Act................................. 6
Existing Credit Facility..................... 6
Existing Indebtedness........................ 6
Fair Market Value............................ 6
GAAP......................................... 7
<PAGE> 149
Global Security.............................. 7
Hedging Obligations.......................... 7
Holder....................................... 7
Incur........................................ 7
Indebtedness................................. 7
Indenture.................................... 8
Independent Financial Advisor................ 8
Intangible Assets............................ 8
Interest Payment Date........................ 8
Investments.................................. 8
Issue Date................................... 8
Legal Holiday................................ 9
Lien......................................... 9
Material Subsidiary.......................... 9
Maturity..................................... 9
Net Worth Amount............................. 9
Net Worth Offer.............................. 9
Net Worth Offer Date......................... 9
Net Worth Offer Price........................ 9
Non-Recourse Indebtedness.................... 9
Officer...................................... 9
Officers' Certificate....................... 10
Opinion of Counsel.......................... 10
Outstanding................................. 10
Paying Agent................................ 11
Payment Blockage Period..................... 11
Permitted Investment........................ 11
Person...................................... 11
Place of Payment............................ 11
Preferred Stock............................. 11
Refinancing Indebtedness.................... 11
Registrar................................... 12
Regular Record Date......................... 12
Restricted Investment....................... 12
Restricted Payment.......................... 12
Restricted Subsidiary....................... 13
SEC......................................... 13
Securities.................................. 13
Security Register........................... 13
Senior Indebtedness......................... 13
Special Record Date......................... 14
Stated Maturity............................. 14
Subsidiary ................................. 14
Successor................................... 14
TIA ........................................ 14
Trustee..................................... 15
Trust Officer .............................. 15
U.S. Government Obligations................. 15
Unrestricted Subsidiary..................... 15
Weighted Average Life to Maturity........... 16
Wholly Owned Subsidiary..................... 16
<PAGE> 150
Section 1.03 Incorporation by Reference of TIA .......... 16
ARTICLE 2 SECURITY FORMS.................................. 16
Section 2.01 Forms Generally............................. 16
Section 2.02 Form of Legend for Global Securities ....... 17
Section 2.03 Form of Trustee's Certificate of
Authentication.............................. 17
ARTICLE 3 THE SECURITIES ................................. 18
Section 3.01 Amount Unlimited; Issuable in Series........ 18
Section 3.02 Denominations......................... 21
Section 3.03 Execution, Authentication, Delivery
and Dating............................ 21
Section 3.04 Temporary Securities.................. 23
Section 3.05 Registration, Registration of
Transfer and Exchange................. 23
Section 3.06 Mutilated, Destroyed, Lost and
Stolen Securities..................... 27
Section 3.07 Payment of Interest; Interest
Rights Preserved...................... 27
Section 3.08 Persons Deemed Owners................. 29
Section 3.09 Cancellation.......................... 29
Section 3.10 Computation of Interest............... 29
ARTICLE 4 REDEMPTION...................................... 30
Section 4.01 Applicability of Article.............. 30
Section 4.02 Election to Redeem; Notice to Trustee 30
Section 4.03 Selection of Securities to Be
Redeemed.............................. 30
Section 4.04 Notices to Holders.................... 30
Section 4.05 Effect of Notice of Redemption ....... 31
Section 4.06 Deposit of Redemption Price........... 31
Section 4.07 Securities Redeemed in Part........... 32
Section 4.08 Optional Redemption................... 32
ARTICLE 5 SINKING FUNDS................................... 32
Section 5.01 Applicability of Article.............. 32
Section 5.02 Satisfaction of Sinking Fund Payments
With Securities....................... 33
Section 5.03 Redemption of Securities for
Sinking Fund.......................... 33
ARTICLE 6 COVENANTS....................................... 34
Section 6.01 Payment of Securities................. 34
Section 6.02 Maintenance of Office or Agency ...... 35
Section 6.03 SEC Reports; Financial Statements..... 35
Section 6.04 Money for Security Payments to Be
Held in Trust......................... 36
<PAGE> 151
Section 6.05 Compliance Certificate ............... 37
Section 6.06 Corporate Existence, etc. ............ 37
Section 6.07 Payment of Taxes and Other Claims..... 38
Section 6.08 Insurance............................. 38
Section 6.09 Stay, Extension and Usury Laws........ 38
Section 6.10 Maintenance of Properties............. 38
Section 6.11 Prohibition on Issuance of
Other Subordinated Indebtedness
Senior to the Securities ............. 39
Section 6.12 Limitations on Restricted Payments.... 39
Section 6.13 Limitations on Additional Indebtedness 40
Section 6.14 Change of Control..................... 41
Section 6.15 Limitations on Transactions With
Affiliates............................ 43
Section 6.16 Limitations on Restrictions on
Distributions from Restricted
Subsidiaries.......................... 44
Section 6.17 Maintenance of Consolidated Tangible
Net Worth............................. 45
ARTICLE 7 SUCCESSORS...................................... 48
Section 7.01 Limitations on Mergers and
Consolidations........................ 48
Section 7.02 Successor Corporation Substituted..... 48
ARTICLE 8 DEFAULTS AND REMEDIES........................... 49
Section 8.01 Events of Default..................... 49
Section 8.02 Acceleration.......................... 51
Section 8.03 Other Remedies........................ 52
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture Provisions.. 52
Section 8.05 Control by Majority................... 52
Section 8.06 Limitations on Suits.................. 52
Section 8.07 Rights of Holders to Receive Payment.. 53
Section 8.08 Collection Suit by Trustee ........... 53
Section 8.09 Trustee May File Proofs of Claim...... 53
Section 8.10 Priorities............................ 54
Section 8.11 Undertaking for Costs................. 54
Section 8.12 Restoration of Rights and Remedies.... 54
ARTICLE 9 TRUSTEE......................................... 55
Section 9.01 Duties of Trustee..................... 55
Section 9.02 Rights of Trustee..................... 56
Section 9.03 Individual Rights of Trustee.......... 57
Section 9.04 Trustee's Disclaimer.................. 57
Section 9.05 Notice of Defaults.................... 57
Section 9.06 Reports by Trustee to Holders......... 58
Section 9.07 Compensation and Indemnity............ 58
Section 9.08 Replacement of Trustee ............... 59
Section 9.09 Successor Trustee by Merger, etc. .... 60
Section 9.10 Eligibility; Disqualification......... 60
Section 9.11 Preferential Collection of Claims
Against Company....................... 60
<PAGE> 152
ARTICLE 10 HOLDERS' LISTS.................................. 61
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders ............. 61
Section 10.02 Preservation of Information........... 61
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE ............. 61
Section 11.01 Company's Option to Effect
Defeasance or Covenant Defeasance..... 61
Section 11.02 Defeasance and Discharge ............. 62
Section 11.03 Covenant Defeasance................... 62
Section 11.04 Conditions to Defeasance or
Covenant Defeasance................... 63
Section 11.05 Deposited Money and U.S.
Government Obligations
to Be Held in Trust; Other
Miscellaneous Provisions.............. 65
Section 11.06 Reinstatement ........................ 65
ARTICLE 12 SATISFACTION AND DISCHARGE...................... 66
Section 12.01 Satisfaction and Discharge of
Indenture............................. 66
Section 12.02 Application of Trust Money............ 67
ARTICLE 13 SUPPLEMENTAL INDENTURES ........................ 67
Section 13.01 Supplemental Indentures Without
Consent of Holders.................... 67
Section 13.02 Supplemental Indentures With Consent
of Holders............................ 69
Section 13.03 Compliance With TIA................... 70
Section 13.04 Revocation and Effect of Consents..... 70
Section 13.05 Notation on or Exchange of Securities. 71
Section 13.06 Trustee to Sign Amendments, etc....... 71
Section 13.07 Subordination Unimpaired.............. 71
ARTICLE 14 MISCELLANEOUS................................... 71
Section 14.01 TIA Controls.......................... 71
Section 14.02 Notices............................... 72
Section 14.03 Communication by Holders With Other
Holders............................... 73
Section 14.04 Action by Securityholders............. 73
Section 14.05 Proof of Execution of Instruments
and Holding of Securities............. 74
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities .............. 74
Section 14.07 Certificate and Opinion as to
Conditions Precedent.................. 74
Section 14.08 Statements Required in Certificate
or Opinion ........................... 75
Section 14.09 Rules by Trustee and Agents........... 76
Section 14.10 No Recourse Against Others............ 76
<PAGE> 153
Section 14.11 Governing Law ........................ 76
Section 14.12 No Adverse Interpretation of Other
Agreements............................ 76
Section 14.13 Successors............................ 76
Section 14.14 Severability ......................... 76
Section 14.15 Counterpart Originals................. 76
Section 14.16 Trustee as Paying Agent and Registrar. 77
Section 14.17 Table of Contents, Headings, etc...... 77
Section 14.18 Benefits of Indenture................. 77
Section 14.19 Acceptance of Trust................... 77
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES............... 77
Section 15.01 Purposes of Meetings.................. 77
Section 15.02 Call of Meetings by Trustee........... 78
Section 15.03 Call of Meetings by Company or
Securityholders ...................... 78
Section 15.04 Person Entitled to Vote at Meeting.... 78
Section 15.05 Regulations for Meeting............... 78
ARTICLE 16 SUBORDINATION; SENIORITY ....................... 79
Section 16.01 Securities Subordinated to Senior
Indebtedness.......................... 79
Section 16.02 Company Not to Make Payments with
Respect to Securities in Certain
Circumstances......................... 80
Section 16.03 Subrogation of Securities............. 82
Section 16.04 Authorization by Holders.............. 83
Section 16.05 Notices to Trustee.................... 83
Section 16.06 Trustee's Relation to Senior
Indebtedness.......................... 84
Section 16.07 No Impairment of Subordination........ 85
Section 16.08 Article 16 Not to Prevent Events
of Default............................ 85
Section 16.09 Paying Agents Other Than the Trustee.. 85
<PAGE> 154
INDENTURE, dated as of ______ __, ____, between U.S. Home
Corporation, a Delaware corporation, and IBJ Whitehall Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises
and the acquisition 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 any series thereof, as follows:
1 ARTICLE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Rules of Construction
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(c) 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 hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and transactions.
Section 1.1 Definitions
Capitalized terms used herein will have the following
respective meanings when used herein:
<PAGE> 155
"Acquisition Debt" means Indebtedness of any Person existing at the
time such Person became a Subsidiary of the Company (or such Person is
merged into the Company or one of the Company's Subsidiaries) or assumed in
connection with the acquisition of assets from any such Person (other than
assets acquired in the ordinary course of business of the Company and its
Subsidiaries), including, without limitation, Indebtedness Incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary
of the Company (but excluding Indebtedness of such Person which is
extinguished, retired or repaid in connection with such Person becoming a
Subsidiary of the Company).
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control
with, such Person. For purposes of this Indenture, each executive officer
and director of the Company and each Restricted Subsidiary will be an
Affiliate of the Company. In addition, for purposes of this Indenture,
control of a 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. Notwithstanding the foregoing,
the term "Affiliate" will not include, with respect to the Company or any
Restricted Subsidiary which is a Wholly Owned Subsidiary of the Company,
any Restricted Subsidiary which is a Wholly Owned Subsidiary of the
Company.
"Affiliate Transaction" has the meaning set forth in Section 6.15(a)
hereof.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of a Person or any
authorized committee of the board of directors of such Person.
"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" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however
designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such
Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
<PAGE> 156
"Capitalized Lease Obliations" of any Person means any obligation of
such Person to pay rent or other amounts under a lease that is required to
be capitalized for financial reporting purposes in accordance with GAAP,
and the amount of such obligation will be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Equivalents" means any of the following, to the extent owned by
the Company, free and clear of all Liens and having a maturity of not
greater than 90 days from the date of issuance thereof: (i) readily
marketable direct obligations of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the United States, (ii) insured certificates of
deposit of or time deposits with any commercial bank that (a) is a member
of the Federal Reserve System, (b) issues (or the parent of which issues)
commercial paper rated as described in clause (iii) below, (c) is organized
under the laws of the United States or any State thereof and (d) has
combined capital and surplus of at least $1,000,000,000 or (iii) commercial
paper in an aggregate amount of no more than $5,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States or the District of Columbia that is not
an Affiliate of the Company and rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investor Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Corporation.
"Change of Control" means any of the following: (i) the sale, lease,
conveyance or other disposition of all or substantially all of the
Company's assets as an entirety or substantially as an entirety to any
Person or group of Persons (within the meaning of Section 13(d)(3) of the
Exchange Act) in one or a series of transactions; provided that a
transaction where the holders of all classes of Common Equity of the
Company immediately prior to such transaction own, directly or indirectly,
50 percent or more of the aggregate voting power of all classes of Common
Equity of such Person or group immediately after such transaction will not
be a Change of Control, (ii) the acquisition by the Company and/or any of
its Subsidiaries of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company in one transaction or a series of
related transactions, (iii) the liquidation or dissolution of the Company;
provided that a liquidation or dissolution of the Company which is part of
a transaction or series of related transactions that does not constitute a
Change of Control under the "provided" clause of clause (i) above will not
constitute a Change of Control under this clause (iii) or (iv) any
transaction or a series of related transactions (as a result of a tender
offer, merger, consolidation or otherwise) that results in, or that is in
connection with, (a) any Person, including, a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) acquiring beneficial ownership (as
determined in accordance with Rule 13d-3 under the Exchange Act), directly
or indirectly, of 50 percent or more of the aggregate voting power of all
classes of Common Equity of the Company or of any Person that possesses
beneficial ownership (as determined in accordance with Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50 percent or more of the
aggregate voting power of all classes of Common Equity of the Company or
(b) less than 50 percent (measured by the aggregate voting power of all
classes) of the Common Equity of the Company being registered under Section
12(b) or 12(g) of the Exchange Act.
<PAGE> 157
"Change of Control Offer" has the meaning set forth in Section 6.14(a)
hereof.
"Change of Control Payment Date" has the meaning set forth in Section
6.14(a) hereof.
"Change of Control Price" has the meaning set forth in Section 6.14(a)
hereof.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled (i) to vote in the election of directors of such
Person, or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
"Company" means U.S. Home Corporation, a Delaware corporation, and any
successor thereof.
"Company Request or Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its
President, a Senior Vice President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Income" of the Company for any period means the
aggregate net income (or loss) of the Company and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided that there will be excluded from such net
income (to the extent otherwise included therein), without duplication: (i)
the net income (or loss) of any Person (other than a Restricted Subsidiary)
in which any Person (including, without limitation, an Unrestricted
Subsidiary) other than the Company has an ownership interest, except to the
extent that any such income has actually been received by the Company or
any Restricted Subsidiary in the form of dividends or similar distributions
during such period, (ii) except to the extent includible in the
Consolidated Net Income pursuant to the foregoing clause (i), the net
income (or loss) of any Person that accrued prior to the date that (a) such
Person becomes a Restricted Subsidiary or is merged into or consolidated
with the Company or any of its Restricted Subsidiaries or (b) the assets of
such Person are acquired by the Company or any of its Restricted
Subsidiaries, (iii) the net income of any Restricted Subsidiary to the
extent that (but only so long as) the declaration or payment of dividends
or similar distributions by such Restricted Subsidiary of that income is
not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary during such period,
(iv) in the case of a successor to the Company by consolidation, merger or
transfer of its assets, any earnings of the successor prior to such merger,
consolidation or transfer of assets and (v) the gains (but not losses)
resulting from (a) the acquisition of securities issued by the Company or
extinguishment of Indebtedness of the Company, (b) the sale or other
disposition (including, without limitation, dispositions pursuant to sale
and leaseback transactions) of any asset of the Company which is not sold
<PAGE> 158
or disposed of in the ordinary course of business, and (c) other
extraordinary items. Notwithstanding the foregoing, in calculating
Consolidated Net Income, the Company will be entitled to take into
consideration the tax benefits associated with any extraordinary loss, but
only to the extent such tax benefits are recognized by the Company.
Consolidated Net Income will exclude any noncash losses, whether or not
extraordinary, incurred in connection with the issuance of Capital Stock
(other than Disqualified Stock) in exchange for Indebtedness of the Company
or its Wholly Owned Subsidiaries which are Restricted Subsidiaries.
"Consolidated Tangible Net Worth" of the Company as of any date means
the stockholders' equity (including any Preferred Stock that is classified
as equity under GAAP, other than Disqualified Stock) of the Company and its
Restricted Subsidiaries on a consolidated basis at the end of the fiscal
quarter immediately preceding such date, as determined in accordance with
GAAP, less the amount of Intangible Assets reflected on the consolidated
balance sheet of the Company and its Restricted Subsidiaries as of the end
of the fiscal quarter immediately preceding such date.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 14.02 hereof or such other address as the
Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in Section 11.03
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 3.07 hereof.
"Defeasance" has the meaning set forth in Section 11.02 hereof.
"Defeasible Series" has the meaning set forth in Section 11.01 hereof.
"Depository" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act
as Depository for such Securities as contemplated by Section 3.01.
"Designated Senior Indebtedness" means (i) Senior Indebtedness
permitted to be incurred pursuant to this Indenture under or in respect of
an institutional credit agreement, including the Existing Credit Facility,
and (ii) any other Senior Indebtedness permitted to be incurred pursuant to
this Indenture the principal amount of which is $25,000,000 or more.
<PAGE> 159
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to the final Maturity date of the Securities of any series;
provided that any Capital Stock which would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to
require the Company to repurchase or redeem such Capital Stock upon the
occurrence of a change of control occurring prior to the final Maturity of
the Securities will not constitute Disqualified Stock if the change of
control provisions applicable to such Capital Stock are no more favorable
to the holders of such Capital Stock than the provisions contained in
Section 6.14 hereof and such Capital Stock specifically provides that the
Company will not repurchase or redeem (or be required to repurchase or
redeem) any such Capital Stock pursuant to such provisions prior to the
Company's repurchase of Securities pursuant to Section 6.14 hereof.
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in Section 8.01(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Credit Facility" means the Second Amended and Restated
Credit Agreement, dated as of September 11, 1998, between the Company and
the lenders named therein and The First National Bank of Chicago, as Agent
(together with the documents related thereto (including, without
limitation, any guaranty agreements)), as such Existing Credit Facility may
be amended, restated, supplemented or otherwise modified from time to time,
and includes any facility extending the maturity of, increasing the total
commitment of, or restructuring (including, without limitation, the
inclusion of additional borrowers thereunder that are Subsidiaries of the
Company and whose obligations thereunder are guaranteed by the Company) all
or any portion of, the Indebtedness under such Existing Credit Facility or
any successor or replacement facilities and includes any facility with one
or more agents or lenders refinancing or replacing all or any portion of
the Indebtedness under such Existing Credit Facility or any successor
facilities.
"Existing Indebtedness" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Issue Date of Securities of
any series.
"Fair Market Value" with respect to any asset or property means the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
<PAGE> 160
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the
Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depository for such Securities or a nominee
thereof.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures
contract or other similar agreement or arrangement relating to interest
rates or foreign exchange rates.
"Holder" means a Person in whose name a Security is registered.
"Incur" means to, directly or indirectly, create, incur, assume,
guaranty, extend the maturity of, or otherwise become liable with respect
to any Indebtedness.
"Indebtedness" of any Person at any date means, without duplication,
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto), other than
standby letters of credit issued for the benefit of, or surety and
performance bonds issued by, such Person in the ordinary course of
business, (iv) all obligations of such Person with respect to Hedging
Obligations (other than those that fix or cap the interest rate on variable
rate indebtedness otherwise permitted by this Indenture or that fix the
exchange rate in connection with indebtedness denominated in a foreign
currency and otherwise permitted by this Indenture and other than the
purchase of mortgage commitments in the ordinary course of business), (v)
all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, including, without limitation, all
conditional sale obligations of such Person and all obligations under any
title retention agreement (except trade payables and accrued expenses
incurred in the ordinary course of business), (vi) all Capitalized Lease
Obligations of such Person, (vii) all indebtedness of others secured by a
Lien on any asset of such Person, whether or not such indebtedness is
assumed by such Person, (viii) all indebtedness of others guaranteed by, or
otherwise the liability of, such Person to the extent of such guaranty or
liability, and (ix) all Disqualified Stock issued by such Person (the
amount of indebtedness represented by any Disqualified Stock will equal the
greater of the voluntary or involuntary liquidation preference plus accrued
and unpaid dividends). The amount of indebtedness of any Person at any date
<PAGE> 161
will be (a) the outstanding balance at such date of all unconditional
obligations as described above, (b) the maximum liability of such Person
for any contingent obligations under clause (v) above and (c) in the case
of clause (vii) (if the indebtedness referred to therein is not assumed by
such Person), the lesser of the (A) Fair Market Value of all assets subject
to a Lien securing the indebtedness of others on the date that the Lien
attaches and (B) amount of the indebtedness secured.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the TIA that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of
particular series of Securities established as contemplated by Section 3.01
hereof upon receipt by the Trustee of an Opinion of Counsel in accordance
with Section 3.03 hereof.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the
reasonable judgment of the Company's Board of Directors, (i) qualified to
perform the task for which it has been engaged, and (ii) disinterested and
independent with respect to the Company, all of its Subsidiaries, and each
Affiliate of the Company and/or its Subsidiaries that is involved in the
Affiliate Transaction with respect to which such firm has been engaged.
"Intangible Assets" of the Company means all unamortized debt discount
and expense, unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, copyrights, write-ups of assets over their
carrying value at the end of the last fiscal quarter ended prior to the
Issue Date of the Securities of any series or the date of acquisition, if
acquired subsequent thereto, and all other items which would be treated as
intangibles on the consolidated balance sheet of the Company and its
Restricted Subsidiaries prepared in accordance with GAAP.
"Interest Payment Date", when used with respect to a Security of any
series, means the Stated Maturity of an installment of interest on such
Security.
"Investments" of any Person means (i) all investments by such Person
in any other Person in the form of loans, advances or capital
contributions, (ii) all guaranties of Indebtedness or other obligations of
any other Person by such Person, (iii) all purchases (or other acquisitions
for consideration) by such Person of Indebtedness, Capital Stock or other
securities of any other Person and (iv) all other items that would be
classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person determined in accordance with GAAP.
<PAGE> 162
"Issue Date" means the date of original issuance of the Securities of
each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in New York, New York or at a Place of Payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a Place of Payment, payment shall be
made at that place on the next succeeding day that is not a Legal Holiday
and no interest shall accrue for the intervening period.
"Lien" means with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind upon or
in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including, without limitation, any
conditional sale or other title retention agreement, and any lease in the
nature thereof, any option or other agreement to sell, and any filing of,
or agreement to give, any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction).
"Material Subsidiary" has the meaning set forth in the Indenture,
dated as of August 28, 1997, between the Company and IBJ Schroder Bank &
Trust Company, as trustee, relating to the Company's 7-3/4% Senior Notes
due 2005 and 8.25% Senior Notes due 2004 as in effect on the date hereof.
"Maturity", when used with respect to a Security of any series, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Net Worth Amount" has the meaning set forth in Section 6.17(a)
hereof.
"Net Worth Offer" has the meaning set forth in Section 6.17(a) hereof.
"Net Worth Offer Date" has the meaning set forth in Section 6.17(a)
hereof.
"Net Worth Offer Price" has the meaning set forth in Section 6.17(a)
hereof.
"Non-Recourse Indebtedness" means Indebtedness of the Company or a
Restricted Subsidiary for which (i) the sole legal recourse for collection
of principal and interest on such Indebtedness is against the specific
property identified in the instruments evidencing or securing such
Indebtedness and such property was acquired with the proceeds of such
Indebtedness or such Indebtedness was Incurred within 90 days after the
acquisition of such property and (ii) no other assets of the Company or
such Restricted Subsidiary may be realized upon in collection of principal
or interest on such Indebtedness.
<PAGE> 163
"Officer" means the Chairman of the Board, the President, any Senior
Vice President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Person's Chief Executive Officer (or Co-Chief
Executive Officer), Chief Operating Officer, Chief Financial Officer or
Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities as to which the Defeasance has been effected pursuant to
Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the
Company;
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, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
<PAGE> 164
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of or any interest on any Securities of
any series.
"Payment Blockage Period" has the meaning set forth in Section 16.02
hereof.
"Permitted Investment" of any Person means any Investment of such
Person in (i) direct obligations of the United States or any agency thereof
or obligations guaranteed by the United States or any agency thereof, in
each case maturing within 180 days of the date of acquisition thereof, (ii)
certificates of deposit maturing within 180 days of the date of acquisition
thereof issued by a bank, trust company or savings and loan association
which is organized under the laws of the United States or any state thereof
having capital, surplus and undivided profits aggregating in excess of $250
million and a Keefe Bank Watch Rating of C or better (or a similar rating
by any successor thereof), (iii) certificates of deposit maturing within
180 days of the date of acquisition thereof issued by a bank, trust company
or savings and loan association organized under the laws of the United
States or any state thereof other than banks, trust companies or savings
and loan associations satisfying the criteria in (ii) above; provided that
the aggregate amount of all certificates of deposit issued to the Company
at any one time by such bank, trust company or savings and loan association
will not exceed $100,000, (iv) commercial paper given the highest rating by
two established national credit rating agencies and maturing not more than
180 days from the date of the acquisition thereof, (v) repurchase
agreements or money-market accounts which are fully secured by direct
obligations of the United States or any agency thereof and (vi) in the case
of the Company and its Subsidiaries, any receivables or loans taken by the
Company or a Subsidiary in connection with the sale of any asset otherwise
permitted by this Indenture.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest on
the Securities of that series are payable as specified as contemplated by
Section 3.01 hereof.
"Preferred Stock" of any Person means all Capital Stock of such Person
which has a preference in liquidation or with respect to the payment of
dividends.
<PAGE> 165
"Refinancing Indebtedness" means Indebtedness that refunds, refinances
or extends any Existing Indebtedness or other Indebtedness permitted to be
Incurred by the Company or its Restricted Subsidiaries pursuant to the
terms of this Indenture, but only to the extent that (i) the Refinancing
Indebtedness is subordinated to the Securities of any series to the same
extent as the Indebtedness being refunded, refinanced or extended, if at
all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended, or
(b) after the maturity date of the Securities of such series, (iii) the
portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the Maturity date of the Securities of such series
has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Weighted
Average Life to Maturity of the portion of the Indebtedness being refunded,
refinanced or extended that is scheduled to mature on or prior to the
Maturity date of the Securities of such series, (iv) such Refinancing
Indebtedness is in an aggregate amount that is equal to or less than the
aggregate amount then outstanding under the Indebtedness being refunded,
refinanced or extended, (v) such Refinancing Indebtedness is Incurred by
the same Person that initially Incurred the Indebtedness being refunded,
refinanced or extended, except that the Company may Incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Restricted
Subsidiary and (vi) such Refinancing Indebtedness is Incurred within 180
days before or after the Indebtedness being refunded, refinanced or
extended is so refunded, refinanced or extended; provided that Refinancing
Indebtedness shall include the amount of any Indebtedness under the
Existing Credit Facility which is Incurred within 180 days before or after
the repayment of an equal amount of Indebtedness under the Existing Credit
Facility which was Incurred pursuant to Section 6.13(a) hereof.
"Registrar" has the meaning set forth in Section 3.05 hereof.
"Regular Record Date" for the interest payable on any Security of any
series on any Interest Payment Date means the date specified for that
purpose as contemplated by Section 3.01 hereof.
"Restricted Investment" with respect to any Person means any
Investment (other than any Permitted Investment) by such Person in any (i)
of its Affiliates, (ii) executive officer or director of any Affiliate of
such Person, or (iii) other Person other than a Restricted Subsidiary which
is a Wholly Owned Subsidiary of the referent Person; provided, however,
that with respect to the Company and its Restricted Subsidiaries, any loan
or advance to an executive officer or director of the Company or a
Subsidiary will not constitute a Restricted Investment provided such loan
or advance is made in the ordinary course of business consistent with past
practices, and, if such loan or advance exceeds $100,000 (other than a
readily marketable mortgage loan not exceeding $500,000), such loan or
advance has been approved by the Board of Directors of the Company or a
disinterested committee thereof.
<PAGE> 166
"Restricted Payment" with respect to any Person means (i) the
declaration of any dividend or the making of any other payment or
distribution of cash, securities or other property or assets in respect of
such Person's Capital Stock (except that a dividend payable solely in
Capital Stock (other than Disqualified Stock) of such Person will not
constitute a Restricted Payment), (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of such
Person's Capital Stock or any other payment or distribution made in respect
thereof (other than payments or distributions excluded from the definitions
of Restricted Payment in clause (i) above), either directly or indirectly,
(iii) any Restricted Investment and (iv) any principal payment, redemption,
repurchase, defeasances or other acquisition or retirement of any
Indebtedness of any Unrestricted Subsidiary or of Indebtedness of the
Company or its Restricted Subsidiaries which is subordinated in right of
payment to the Securities of any series (provided, however, that the
principal payment, redemption, repurchase, defeasance or other acquisition
or retirement of any such subordinated Indebtedness by the Company or any
Restricted Subsidiary on its scheduled final Maturity date or on any other
scheduled date for the payment of any installment of principal thereof
(whether pursuant to a sinking fund, mandatory redemption or otherwise)
shall not be a Restricted Payment); provided, further, that with respect to
the Company and its Subsidiaries, Restricted Payments will not include (a)
any payment or other obligation described in clause (i), (ii) or (iii)
above made to, or on behalf or for the benefit of, the Company or any of
its Restricted Subsidiaries which are Wholly Owned Subsidiaries by any of
the Company's Subsidiaries, or (b) any proportionate payment in respect of
minority interests in Restricted Subsidiaries of the Company to the extent
that the payment constitutes a return of capital that was not included in
the Company's shareholders' equity or a dividend or similar distribution
not included in determining the Company's Consolidated Net Income, or (c)
any principal payment, redemption, repurchase, defeasance or other
acquisition or retirement of Indebtedness of the Company or its Restricted
Subsidiaries which is subordinated to the Securities if the consideration
therefor consists solely of, or is the proceeds from, Indebtedness
subordinated to the Securities to the same extent as the Indebtedness being
paid, redeemed, repurchased, defeased or otherwise acquired or retired, or
(d) any principal payment, redemption, repurchase, defeasance or other
acquisition or retirement of Indebtedness or Capital Stock of such Person
or its Subsidiaries if the consideration therefor consists solely of
Capital Stock (other than Disqualified Stock) of such Person, or the
proceeds from such sale of such Capital Stock, or (e) any loans or advances
by the Company or any Restricted Subsidiary to Unrestricted Subsidiaries
which in an aggregate amount at any one time outstanding do not exceed
$50,000,000.
<PAGE> 167
"Restricted Subsidiary" means each of the Subsidiaries of the Company
which is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission, and any successor
thereto.
"Securities" has the meaning set forth in the first recital of this
Indenture and more particularly means any securities of any series
authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section 3.05 hereof.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including, without limitation, interest accruing subsequent to
the filing of a petition under applicable Bankruptcy Law or the appointment
of a Custodian), (i) any and all indebtedness and obligations of the
Company (including indebtedness of others guaranteed by the Company),
whether or not contingent and whether or not outstanding on the Issue Date
of the Securities of any series or thereafter created, incurred or assumed,
including, without limitation, all charges, fees, expenses (including,
without limitation, reasonable attorneys' fees and expenses and other
amounts incurred by or owing to holders of such indebtedness), which (a) is
for money borrowed, (b) is evidenced by any bond, note, debenture or
similar instrument, (c) represents the unpaid balance on the purchase price
of any property, business or asset of any kind, (d) is a Capitalized Lease
Obligation, (e) is a reimbursement obligation of the Company with respect
to letters of credit, (f) is an obligation of the Company with respect to
an interest swap obligation or a foreign exchange agreement or (g) is an
obligation of another secured by a Lien to which any of the properties or
assets (including, without limitation, leasehold interests and any other
tangible or intangible property rights) of the Company are subject, whether
or not the obligation secured thereby will have been assumed by the Company
or will otherwise be the Company's legal liability and (ii) any deferrals,
amendments, renewals, extensions, modifications and refundings of any
indebtedness or obligations of the types referred to above; provided that
Senior Indebtedness will not include (A) (x) the Securities or (y) the
Company's 8.88% Senior Subordinated Notes due 2007, (B) any indebtedness or
obligation of the Company (or the instrument creating or evidencing it)
which expressly provides that such indebtedness is not superior in right of
payment to the Securities or which expressly provides that such
indebtedness is subordinate in right of payment to all other indebtedness
of the Company (including the Securities), (C) any indebtedness or
obligation of the Company to any of its Subsidiaries and (D) any
indebtedness or obligation incurred by the Company in connection with the
purchase of assets, materials or services in the ordinary course of
business and which constitutes a trade payable.
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 3.07 hereof.
<PAGE> 168
"Stated Maturity", when used with respect to any Security of any
series or any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of which at least
a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly beneficially owned by such Person, and
(ii) any entity other than a corporation of which such Person directly or
indirectly beneficially owns at least a majority of the Common Equity.
"Successor" has the meaning set forth in Section 7.01(a) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of the Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include the Person who is then the Trustee
hereunder.
"Trust Officer" means any Senior Vice President, Vice President,
Assistant Vice President, Assistant Secretary or Assistant Treasurer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means (i) any security that is (a) a
direct obligation of the United States for the payment of which the full
faith and credit of the United States is pledged or (b) an obligation of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
"Unrestricted Subsidiary" means each of the Subsidiaries of the
Company so designated by a Board Resolution. The Board of Directors of the
Company may designate an Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that (i) any such redesignation will be deemed to be
an Incurrence by the Company and its Restricted Subsidiaries of the
Indebtedness (if any) of such redesignated Subsidiary for purposes of the
<PAGE> 169
covenant set forth in Section 6.13 hereof as of the date of such
redesignation and (ii) immediately after giving effect to such
redesignation and the Incurrence of any such additional Indebtedness, the
Company and its Restricted Subsidiaries could Incur $1.00 of additional
Indebtedness under the ratio of the Company's Indebtedness (excluding
Non-Recourse Indebtedness) to Consolidated Tangible Net Worth contained in
the covenant set forth in Section 6.13(a) hereof. Subject to the foregoing,
the Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary; provided that (i) all previous
Investments by the Company and its Restricted Subsidiaries in such
Restricted Subsidiary will be deemed to be Restricted Payments at the time
of such designation and will reduce the amount available for Restricted
Payments under the covenant set forth in Section 6.12 hereof and (ii)
immediately after giving effect to such designation and reduction of
amounts available for Restricted Payments under the covenant set forth in
Section 6.12 hereof, the Company and its Restricted Subsidiaries could
Incur $1.00 of additional Indebtedness under the ratio of the Company's
Indebtedness (excluding Non-Recourse Indebtedness) to Consolidated Tangible
Net Worth contained in the covenant set forth in Section 6.13(a) hereof.
Any such designation or redesignation by the Board of Directors of the
Company will be evidenced to the Trustee by the filing with the Trustee of
a Board Resolution giving effect to such designation or redesignation and
an Officers' Certificate certifying that such designation or redesignation
complied with the foregoing conditions and setting forth the underlying
calculations of such Officers' Certificate.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof, at any date, the number of years obtained
by dividing (i) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal, including, without limitation, payment
at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment by (ii) the then outstanding principal
amount of such Indebtedness or portion thereof.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary, of
which 100 percent of the Common Equity (except for directors' qualifying
shares or certain minority interests owned by other Persons solely due to
local law requirements that there be more than one stockholder, but which
interest is not in excess of what is required for such purpose) is owned
directly by such Person or through one or more other Wholly Owned
Subsidiaries of such Person, or (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns all of the Common Equity of
such entity.
Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA,
such provision is incorporated by reference in and made a part of this
Indenture.
<PAGE> 170
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
an Officers' Certificate or a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistent herewith, be
determined by the Officers executing such Security as evidenced by their
execution of such Security. If temporary Securities of any series are
issued as Global Securities as permitted by Section 3.04 hereof, the form
thereof shall also be established as provided in the previous sentence. If
the form of Securities of any series is established by action taken
pursuant to an Officers' Certificate or a Board Resolution, a copy thereof
shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.03 hereof for the authentication
and delivery of such Securities. If all of the Securities of any series
established by action taken pursuant to an Officers' Certificate or a Board
Resolution are not to be issued at one time, it shall not be necessary to
deliver a copy thereof at the time of issuance of each Security of such
series, but such Officers' Certificate or Board Resolution shall be
delivered at or prior to the time of issuance of the first Security of such
series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods 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.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Global Security is
exchangeable for Securities registered in the name of a Person other than
the Depository or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances. Every Security delivered upon registration of transfer of,
or in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above.
<PAGE> 171
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
IBJ Whitehall Bank & Trust Company,
As Trustee
By..................................
Authorized Officer
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
the Securities of each such series shall rank equally and pari passu with
the Securities of each other series, but all Securities issued hereunder
shall be subordinated and junior in right of payment, to the extent and in
the manner set forth in Article 16, to all Senior Indebtedness of the
Company. There shall be established in or pursuant to a Board Resolution
and, set forth, or determined in the manner provided, in an Officers'
<PAGE> 172
Certificate, or established in one or more indentures supplemental hereto,
which, in each case, shall be deemed incorporated herein by this reference
and made a part hereof but only with respect to the series of Securities
established pursuant to such Board Resolution, Officers' Certificate or
supplemental indenture, prior to the issuance of Securities of any series
of the following:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 4.07 or
13.05 hereof and except for any Securities which, pursuant to Section
3.03 hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security is
registered at the close of business on the Regular Record Date for
such interest;
(4) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series
is payable;
(5) 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 any such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
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 actual days elapsed
over a 365 or 366-day year;
(6) the place or places, if any, other than or in addition to New
York, New York, where the principal of and interest on Securities of
the series shall be payable, any Securities of the series may be
surrendered for registration of transfer, Securities of the same
series may be surrendered for exchange and, if different from the
location specified in Section 14.02 hereof, 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;
(7) the period or periods within, the price or prices at and the terms
and conditions upon, which Securities of the series may be redeemed or
purchased, in whole or in part, at the option of the Company;
<PAGE> 173
(8) the obligation, if any, of the Company to redeem or repurchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
repurchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and interest on any Securities of the series shall be
payable if other than the currency of the United States and the manner
of determining the equivalent thereof in the currency of the United
States for purposes of the definition of "Outstanding" in Section 1.01
hereof;
(11) if the principal of or interest on any Securities of the series
is to be payable, at the election of the Company or a Holder thereof,
in one or more currencies or currency units other than that or those
in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and
interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(12) if the amount of payments of principal of or interest on any
Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined;
(13) if other than the principal amount of the Securities of any
series, the portion of the principal amount of such Securities which
shall be payable upon declaration of acceleration of the Maturity
thereof;
(14) if applicable, that the Securities of the series shall be
defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depository or Depositories for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 3.05 hereof in which any such Global
Security may be transferred to, and registered and exchanged for
Securities registered in the name of, a Person other than the
Depository for such Global Security or a nominee thereof and in which
any such transfer may be registered;
<PAGE> 174
(16) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of
any series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) if other than the Trustee, the identity of each Paying Agent and
Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Section Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company. The Company shall
pay the reasonable fees and expenses of any authenticating agent.
<PAGE> 175
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Officers' Certificate or
Board Resolutions as permitted by Sections 2.01 and 3.01 hereof, 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:
(1) if the form or forms of such Securities have been established by
or pursuant to Board Resolution or an Officers' Certificate as
permitted by Section 2.01 hereof, that such form or forms have been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to an Officers' Certificate or a Board Resolution as
permitted by Section 3.01 hereof, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, 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
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Securities.
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate or Board Resolution otherwise required pursuant to
Section 3.01 hereof or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at the time of issuance of
each Security of such series, but such documents shall be delivered at or
prior to the time of issuance of the first Security of such series.
Notwithstanding the immediately preceding sentence, any subsequent request
by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by
the Company that, as of the date of such request, the statements made in
the Opinion of Counsel delivered pursuant to this Section 3.03 shall be
true and correct as if made on such date.
<PAGE> 176
The Trustee shall have the right to refuse to
authenticate and deliver such Securities if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or officers of
the Trustee shall determine that such action would expose the Trustee to
personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder 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 3.09 hereof together with a Company
Order (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or 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.
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
<PAGE> 177
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the Securities of each
series including any Global Security (the "Security Register") in an office
or agency of the Company in a Place of Payment (the "Registrar") where,
subject to Section 3.05(c) hereof and such reasonable regulations as the
Company may prescribe, Securities may be presented for registration of
transfer or for exchange. The Company may appoint one or more
co-Registrars. The term "Registrar" includes any co-Registrar. The Company
may change any Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
<PAGE> 178
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its 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 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) 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.
(b) In case the Company, pursuant to Article 7 hereof, will be
consolidated or merged with or into any other Person or will convey,
transfer or lease substantially all of its properties and assets to any
Person, and the Successor resulting from such consolidation, or surviving
such merger, or into which the Company will have been merged, or the Person
which will have received a conveyance, transfer or lease as aforesaid, will
have executed an indenture supplemental hereto with the Trustee pursuant to
Article 7 hereof, any of the Securities authenticated or delivered prior to
such consolidation, merger, conveyance, transfer or lease may, from time to
time, at the request of the Successor, be exchanged for other Securities
executed in the name of the Successor with such changes in phraseology and
form as may be appropriate, but otherwise in substance and of like tenor as
the Securities surrendered for such exchange and of like principal amount;
and the Trustee, upon receipt of an Officers' Certificate from the
Successor, will authenticate and deliver Securities as specified in such
request for the purpose of such exchange. If Securities will at any time be
authenticated and delivered in any new name of a Successor pursuant to this
Section 3.05(b) hereof in exchange or substitution for or upon registration
of transfer of any Securities, such Successor, at the option of the Holders
but without expense to them, will provide for the exchange of all
Securities at the time outstanding for Securities authenticated and
delivered in such new name.
<PAGE> 179
(c) The Company will execute and the Trustee will, in accordance with
this Section 3.05(c) for so long as the Securities of any series are to be
issued in whole or in part in the form of one or more Global Securities,
authenticate and deliver one or more Global Securities that will (i)
represent and will be denominated in an amount equal to the aggregate
outstanding principal amount of the Securities to be represented by such
Global Security or Securities, (ii) be registered in the name of the
Depository for such Global Security or Securities or the nominee of such
Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
<PAGE> 180
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security shall be
cancelled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
<PAGE> 181
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, instruct the Paying
Agent to pay such Security.
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security 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 6.02 hereof.
<PAGE> 182
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date 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 (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money (except as otherwise specified pursuant
to Section 3.01 hereof for the Securities of such series) 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 mailed, first
class postage prepaid, to each Holder of Securities of such series at its
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date and notice shall be considered given whether or
not received by the Holder. If notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor have been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of the securities exchange on which such Securities may be
listed, if any, and upon such notice as may be required by such exchange,
if, after written 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> 183
The provisions of this Section 3.07 may be applicable to
any series of Securities pursuant to Section 3.01 hereof (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 3.01 hereof).
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, 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 and 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 accompanied by an
Officers' Certificate authorizing such cancellation, and 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 destroyed (subject to applicable provisions of record retention
laws) and the Trustee shall deliver a certificate of destruction to the
Company.
<PAGE> 184
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
ARTICLE 4
REDEMPTION
Secton 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 15 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding Securities of a
series are to be redeemed, the Trustee will select the Securities of such
series to be redeemed pro rata or by lot or by any other method the Trustee
deems fair and appropriate but only in integral multiples of $1,000. The
particular Securities of a series to be redeemed will be selected, unless
otherwise provided herein, not less than 20 nor more than 60 days prior to
the redemption date by the Trustee from the Outstanding Securities of such
series not previously called for redemption.
(b) The Trustee will promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Security of a series selected for partial redemption, the principal amount
thereof to be redeemed but not in integral multiples of less than $1,000.
Provisions of this Indenture that apply to Securities of a series called
for redemption also apply to portions of Securities of a series called for
redemption.
<PAGE> 185
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a redemption
date, the Company will mail a notice to each Holder whose Securities are to
be redeemed.
(b) The notice will identify the Securities of the series to be
redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
(iii) if any Outstanding Security of any series is being redeemed in
part, the portion of the principal amount of such Security to be redeemed
and that, after the redemption date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion
will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the
redemption price;
(vi) that interest on Securities called for redemption ceases to
accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund or optional redemption
(whichever is applicable), if such is the case;
(viii) the aggregate principal amount of Securities that are being
redeemed; and
(ix) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the redemption date, and the only remaining right of the Holders
of such Securities is to receive payment of the redemption price upon
surrender to the Paying Agent of the Securities redeemed.
(c) At the Company's written request, the Trustee will give the notice
required in this Section 4.04 in the Company's name and at its expense.
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
<PAGE> 186
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption date, the
Company will deposit with the Trustee or with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.04 hereof) money sufficient to pay the redemption
price of, and accrued and previously unpaid interest on, all Securities of
such series to be redeemed on that date, and the Trustee will remit the
redemption price to Holders entitled thereto. The Trustee or the Paying
Agent will return to the Company any money not required for that purpose.
(b) If the Company complies with Section 4.06(a) hereof, interest on
the Securities of such series or portions thereof to be redeemed (whether
or not such Securities are presented for payment) will cease to accrue on
the applicable redemption date. If any Security of such series called for
redemption is not so paid upon surrender because of the failure of the
Company to comply with Section 4.06(a) hereof, then interest will be paid
on the unpaid principal from the last Interest Payment Date until such
principal is paid in full at the rate determined pursuant to Section 3.01
hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
<PAGE> 187
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
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 5.02 Satisfaction of Sinking Fund Payments With Securities
Subject to Section 5.03 hereof, 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 (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a 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 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.
<PAGE> 188
Section 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' 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 Officers'
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 5.02 hereof 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 4.03
hereof 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 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
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 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
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 Company shall not instruct the Trustee to 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 as negotiated by the Company, 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.
<PAGE> 189
ARTICLE 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest on, the
Securities of each series on the dates and in the manner provided herein
and in the Securities. In the event the Company is not the Paying Agent,
principal and interest will be considered paid on the date due if the
Trustee or Paying Agent holds on that date money deposited by the Company
designated for and sufficient to pay all principal and interest then due.
In the event the Company is the Paying Agent, principal and interest will
be considered paid on the date actual payment is mailed or otherwise sent
or given to the Holders entitled to such payments.
(b) The Company will pay interest on overdue principal at the
applicable interest rate on the Securities of each series as determined in
accordance with Section 3.01 hereof. 1.2 Section Maintenance of Office or
Agency
(c) The Company will maintain in each Place of Payment for any series
of Securities, in New York, New York, an office or agency (which may be an
office of the Trustee or the Registrar) where Securities of such series may
be presented or surrendered for payment, where Securities of that series
may be presented for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of such
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 fails to
maintain any such required office or agency or fails 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.
(d) The Company may also from time to time designate one or more other
offices or agencies where the Securities of each series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission will in any manner relieve the Company of its obligation to
maintain an office or agency in New York, New York 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.
(e) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with this
Section 6.02.
<PAGE> 190
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original principal amount
of the Securities of any series is Outstanding, the Company will (i) remain
subject to the requirements of Section 13 or 15(d) of the Exchange Act
whether or not it is required to do so by the provisions thereof and will
file with the SEC all periodic reports as may be required thereunder and
(ii) file with the SEC, and the Trustee within 15 days after the Company is
required to file the same with the SEC, copies of the periodic reports
which the Company may be required to file with the SEC pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act. The Company will also make such
reports available to the Holders, prospective purchasers of the Securities
of any such series, securities analysts and broker-dealers upon their
written request.
(b) In the event that (i) 10 percent or less of the original principal
amount of the Securities of any series is Outstanding and (ii) the Company
is not required to file with the SEC such reports and other information
referred to in Section 6.03(a) hereof, the Company will furnish to the
Trustee (A) within 120 days after the end of each fiscal year, annual
reports containing the information required to be contained in Items 1, 2,
3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K promulgated under the
Exchange Act, or substantially the same information required to be
contained in comparable items of any successor form, (B) within 60 days
after the end of each of the first three fiscal quarters of each fiscal
year, quarterly reports containing the information required to be contained
in the Quarterly Report on Form 10-Q promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form and (C) promptly from the time after the occurrence of an
event which would be required to be reported in the Current Report on Form
8-K if the Company was required to file such Report, such other reports
containing information required to be contained in the Current Report on
Form 8-K promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form.
(c) The Company will also comply with the other provisions of TIA
Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its own Paying
Agent with respect to any series of Securities, it will, not less than one
Business Day before each due date of the principal of or interest on any of
the Securities of any series, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums will be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure to so act.
<PAGE> 191
(b) In the event the Company is not acting as Paying Agent with
respect to any series of Securities, the Company will, not less than one
Business Day before each due date of the principal of or interest on, any
Securities of any series, deposit with a Paying Agent a sum in same day
funds sufficient to pay the principal or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying Agent with
respect to any series of Securities, the Company will cause each Paying
Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the principal of or
interest on Securities of such series in trust for the benefit of the
Holders of such series of Securities and the Trustee entitled thereto
until such sums will be paid to such Persons or otherwise disposed of
as herein provided;
(ii) give the Trustee notice of any Default by the Company in the
making of any payment of principal or interest;
(iii) 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; and
(iv) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
(d) 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.
(e) 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 interest on any
Security of any series and remaining unclaimed for two years after such
principal 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 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
<PAGE> 192
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120 days after the
end of each fiscal year of the Company an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default that
occurred during such period. If they do know of a Default or an Event of
Default, the Officers' Certificate will describe the Default or Event of
Default and the action the Company is taking or proposes to take with
respect thereto.
(b) The Company will give prompt written notice to the Trustee of the
occurrence of any Default or Event of Default.
Sectino 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon the property of the Company, in each case except to
the extent the failure to do so would not have, in the judgment of
management, a material adverse effect on the Company and its Subsidiaries
taken as a whole.
<PAGE> 193
Section 6.08 Insurance
The Company will maintain and will cause each of its
Restricted Subsidiaries to maintain (either in the name of the Company or
in such Restricted Subsidiary's own name) with third party insurance
companies or pursuant to self-insurance, (i) insurance on all their
respective properties, (ii) public liability insurance against claims for
personal injury or death as a result of the use of any products sold by it
and (iii) insurance coverage against other business risks, in each case, in
at least such amounts and against at least such other risks (and with such
risk retention) as are usually and prudently insured against in the same
general area by companies engaged in the same or a similar business.
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, 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 has been enacted.
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse affect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
Section 6.11 Prohibition on Issuance of Other Subordinated
Indebtedness Senior to the Securities
The Company will not create, Incur or suffer to exist any
Indebtedness that is expressly subordinated by the terms of the instrument
evidencing such Indebtedness or pursuant to which such Indebtedness is
issued, in right of payment to any Senior Indebtedness unless such
Indebtedness is pari passu with the Securities of any series or subordinate
in right of payment to the Securities of any series pursuant to provisions
substantially similar to those contained in Article 16 hereof.
<PAGE> 194
Section 6.12 Limitations on Restricted Payments
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Restricted Payment, directly or indirectly, after
the Issue Date of Securities of any series if at the time of such
Restricted Payment:
(i) the amount of such Restricted Payment (the amount of such
Restricted Payment, if other than in cash, will be determined by the
Board of Directors of the Company), when added to the aggregate amount
of all Restricted Payments made after the Issue Date of the Securities
of any series, exceeds the sum of: (1) $100,000,000, plus (2) 50
percent of the Company's Consolidated Net Income accrued during the
period (taken as a single period) since January 1, 1997 (or, if such
aggregate Consolidated Net Income is a deficit, minus 100 percent of
such aggregate deficit), plus (3) the net cash proceeds derived from
the issuance and sale of Capital Stock of the Company and its
Restricted Subsidiaries that is not Disqualified Stock (other than a
sale to a Subsidiary of the Company) after the Issue Date of
Securities of any series but only to the extent not applied under
clause (d) of the definition of "Restricted Payment" set forth in
Section 1.02 hereof, plus (4) 100 percent of the principal amount of
any Indebtedness of the Company or a Restricted Subsidiary that is
converted into or exchanged for Capital Stock of the Company that is
not Disqualified Stock, plus (5) 100 percent of the aggregate amounts
received by the Company or any Restricted Subsidiary upon the sale,
disposition or liquidation (including by way of dividends) of any
Investment but only to the extent (x) not included in Section
6.12(a)(i)(2) above and (y) that the making of such Investment
constituted a Restricted Investment made pursuant to this Section
6.12(a)(i), plus (6) 100 percent of the principal amount of, or if
issued at a discount the accreted value of, any Indebtedness or other
obligation that is the subject of a guaranty by the Company which is
released after the Issue Date of Securities of any series, but only to
the extent that the granting of such guaranty constituted a
"Restricted Payment" under the definition set forth in Section 1.02
hereof; or
(ii) the Company would be unable to incur an additional $1.00 of
Indebtedness under the ratio of the Company's Indebtedness (excluding
Non-Recourse Indebtedness) to Consolidated Tangible Net Worth
contained in the covenant set forth in Section 6.13(a) hereof; or
(iii) a Default or Event of Default has occurred and is continuing or
occurs as a consequence thereof.
<PAGE> 195
(b) Notwithstanding the foregoing, the provisions of this Section 6.12
will not prevent: (i) the payment of any dividend within 60 days after the
date of declaration thereof if the payment thereof would have complied with
the limitations of this Indenture on the date of declaration or (ii) the
retirement of shares of the Company's Capital Stock or the Company's or a
Subsidiary of the Company's Indebtedness for, in exchange for or out of the
proceeds of a substantially concurrent sale (other than a sale to a
Subsidiary of the Company) of, other shares of its Capital Stock (other
than Disqualified Stock).
Section 6.12 Limitations on Additional Indebtedness
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, Incur any additional Indebtedness (other than
Indebtedness between the Company and its Restricted Subsidiaries which
are Wholly Owned Subsidiaries or among such Restricted Subsidiaries
which are Wholly Owned Subsidiaries), including Acquisition Debt,
unless, after giving effect thereto or the application of the proceeds
therefrom, the ratio of the Company's Indebtedness (excluding, for
purposes of this calculation, Non-Recourse Indebtedness) to
Consolidated Tangible Net Worth on the date thereof is not greater
than 3.0 to 1.0.
(b) Notwithstanding the foregoing, the provisions of this Indenture
will not prevent: (i) in addition to the Indebtedness permitted to be
Incurred under clauses (ii), (iii) and (iv) of this sentence and
Indebtedness permitted to be Incurred under Section 6.13(a) hereof, the
Company and/or any Restricted Subsidiary from Incurring (A) Refinancing
Indebtedness, (B) Non-Recourse Indebtedness and (C) Indebtedness Incurred
for working capital purposes or to finance the acquisition, holding or
development of property by the Company and its Restricted Subsidiaries
(including, without limitation, the financing of any related interest
reserve) in the ordinary course of business in an aggregate amount at any
one time outstanding not to exceed $50,000,000 (excluding any Indebtedness
referred to in Section 6.13(a) hereof and clauses (i)(A), (i)(B), (ii),
(iii) and (iv) of this Section 6.13(b)), (ii) Unrestricted Subsidiaries
from Incurring Indebtedness, (iii) the Company and its Restricted
Subsidiaries from Incurring Indebtedness under any deposits made to secure
performance of tenders, bids, leases, statutory obligations, surety and
appeal bonds, progress statements, government contracts and other
obligations of like nature (exclusive of the obligation for the payment of
borrowed money), in each case Incurred in the ordinary course of business
of the Company or any Restricted Subsidiary consistent with past practice
and (iv) Restricted Subsidiaries from guaranteeing Indebtedness of the
Company or another Restricted Subsidiary.
<PAGE> 196
Section 6.14 Change of Control
(a) Following the occurrence of any Change of Control, the Company
will so notify the Trustee in writing by delivery of an Officers'
Certificate and will offer to purchase (a "Change of Control Offer") from
all Holders, and will purchase from Holders accepting such Change of
Control Offer on the date fixed for the closing of such Change of Control
Offer (the "Change of Control Payment Date"), the Outstanding Securities of
each series at an offer price (the "Change of Control Price") in cash in an
amount equal to 101 percent of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the Change of Control Payment Date
in accordance with the procedures set forth in this Section 6.14.
(b) Within 30 days after the date of any Change of Control, the
Company (with written notice to the Trustee) or the Trustee at the
Company's request (and at the expense of the Company), will send or cause
to be sent by first class mail, postage prepaid, to all Holders on the date
of the Change of Control at their respective addresses appearing in the
Security Register a notice, prepared by the Company advising the Holders of
such series, of the occurrence of such Change of Control and of the
Holders' rights arising as a result thereof. Such notice will contain all
instructions and materials necessary to enable Holders to tender their
Securities of such series to the Company. Such notice, which will govern
the terms of the Change of Control Offer, will state:
(i) that the Change of Control Offer is being made pursuant to Section
6.14(a) hereof and the length of time the Change of Control Offer will
remain open;
(ii) that the Holder has the right to require the Company to
repurchase such Holder's Securities of such series at the Change of
Control Price;
(iii) that any Security of such series not tendered will continue to
accrue interest;
(iv) that any Security of such series accepted for payment pursuant to
the Change of Control Offer will cease to accrue interest on the
Change of Control Payment Date;
(v) that the Change of Control Payment Date will be no earlier than 45
days nor later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such series purchased
pursuant to any Change of Control Offer will be required to surrender
the Security of such series, with the appropriate form on the Security
of such series completed, to the Company, a depositary, if appointed
by the Company, or a Paying Agent at the address specified in the
notice prior to termination of the Change of Control Offer;
<PAGE> 197
(vii) that Holders will be entitled to withdraw their election if the
Company, depositary or Paying Agent, as the case may be, receives, not
later than the expiration of the Change of Control Offer, or such
longer period as may be required by law, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Security of such series the Holder delivered
for purchase and a statement that such Holder is withdrawing its
election to have the Security of such series purchased;
(viii) that Holders which elect to have their Securities
purchased only in part will be issued new Securities of the same
series, Maturity date, interest rate and Issue Date in a
principal amount equal to the unpurchased portion of the
Securities of such series surrendered; and
(ix) information concerning the date and details of the Change of
Control and the business of the Company which the Company in good
faith believes will enable such Holders to make an informed
decision (which at a minimum will include (A) the most recently
filed Annual Report on Form 10-K (including audited consolidated
financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current
Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset
Sales otherwise described in the offering materials relating to
the Change of Control Offer (or corresponding successor reports)
(or in the event the Company is not required to prepare any of
the foregoing Forms, the comparable information required pursuant
to Section 6.03(b) hereof); provided that the Company may at its
option incorporate by reference any such filed reports in the
notice, (B) a description of material developments in the
Company's business subsequent to the date of the latest of such
reports, and (C) if material, appropriate pro forma financial
information).
(c) In the event of a Change of Control Offer, the Company will only
be required to accept Securities of each series in denominations of $1,000
or integral multiples thereof.
(d) The Company will not, and will not permit any Restricted
Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make a Change of Control Offer.
Notwithstanding the foregoing, if a Change of Control Offer is made, the
Company will pay for Securities of each series tendered for purchase in
accordance with the terms of this Section 6.14.
<PAGE> 198
(e) Not later than one Business Day prior to the Change of Control
Payment Date in connection with which the Change of Control Offer is being
made, the Company will (i) accept for payment Securities of each series or
portions thereof tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent money sufficient, in immediately available
funds, to pay the purchase price of all Securities of each series or
portions thereof so accepted and (iii) deliver to the Paying Agent an
Officers' Certificate identifying the Securities of each series or portions
thereof accepted for payment by the Company. The Paying Agent will promptly
authenticate and mail or deliver to Holders of Securities of each series so
accepted payment in an amount equal to the Change of Control Price of the
Securities of each series purchased from each such Holder, and the Company
will execute and, upon receipt of an Officers' Certificate of the Company,
the Trustee will promptly authenticate and mail or deliver to such Holder a
new Security of the same series, Maturity date, interest rate and Issue
Date equal in principal amount to any unpurchased portion of the Security
of such series surrendered. Any Securities of each series not so accepted
will be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the
results of the Change of Control Offer on the Change of Control Payment
Date. For purposes of this Section 6.14(e), the Company will choose a
Paying Agent which will not be the Company or a Subsidiary thereof. Any
excess cash held by the Trustee after the expiration of the Change of
Control Offer will be returned to the Company.
(f) Any Change of Control Offer will be conducted by the Company in
compliance with applicable law, including, without limitation, Section
14(e) of the Exchange Act and Rule 14e-1 thereunder.
Section 6.15 Limitations on Transactions With Affiliates
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any loan, advance, guaranty or capital contribution
to, or for the benefit of, or sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or for the benefit of, or purchase or
lease any property or assets from, or enter into or amend any contract,
agreement or understanding with, or for the benefit of, (i) any Affiliate
of the Company or any Affiliate of the Company's Restricted Subsidiaries or
(ii) any Person (or any Affiliate of such Person) holding 10 percent or
more of the Common Equity of the Company or any of its Restricted
Subsidiaries (each an "Affiliate Transaction"), except on terms that are no
less favorable to the Company or the relevant Restricted Subsidiary, as the
case may be, than those that could have been obtained in a comparable
transaction on an arms' length basis from a Person that is not an
Affiliate.
<PAGE> 199
(b) The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any Affiliate Transaction involving or having a
value of more than $10,000,000, unless in each case such Affiliate
Transaction has been approved by a majority of the disinterested members of
the Company's Board of Directors.
(c) The Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into an Affiliate Transaction involving or having a
value of more than $20,000,000 unless the Company has delivered to the
Trustee an opinion of an Independent Financial Advisor to the effect that
the transaction is fair to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view.
(d) Notwithstanding the foregoing, an Affiliate Transaction will not
include (i) any contract, agreement or understanding with, or for the
benefit of, or plan for the benefit of, employees or directors of the
Company or its Subsidiaries (in their capacity as such) that has been
approved by the Company's Board of Directors, (ii) Capital Stock issuances
to members of the Board of Directors, officers or employees of the Company
or its Subsidiaries pursuant to plans approved by the stockholders of the
Company, (iii) any Restricted Payment otherwise permitted under Section
6.12 hereof, (iv) any transaction between the Company or a Restricted
Subsidiary and another Restricted Subsidiary, (v) any contract, agreement
or understanding as in effect on the Issue Date of Securities of any series
or any amendment thereto or any transaction contemplated thereby (including
any amendment thereto) or (vi) loans or advances by the Company or any
Restricted Subsidiary to Unrestricted Subsidiaries which in an aggregate
amount at any one time outstanding do not exceed $50,000,000.
Section 6.16 Limitations on Restrictions on Distributions
from Restricted Subsidiaries
The Company will not, and will not permit any of its
Restricted Subsidiaries to, create, assume or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction (other
than encumbrances or restrictions imposed by law or by judicial or
regulatory action or by provisions in leases or other agreements that
restrict the assignability thereof) on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its
Capital Stock or any other interest or participation in, or measured by,
its profits, owned by the Company or any of its other Restricted
Subsidiaries, or pay interest on or principal of any Indebtedness owed to
the Company or any of its other Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its other Restricted Subsidiaries, or
(iii) transfer any of its properties or assets to the Company or any of its
other Restricted Subsidiaries, except for encumbrances or restrictions
existing under or by reason of (a) applicable law, (b) covenants or
<PAGE> 200
restrictions contained in Existing Indebtedness as in effect on the Issue
Date of Securities of any series, (c) any restrictions or encumbrances
arising in connection with the Existing Credit Facility; provided that any
restrictions and encumbrances relating to any extension or renewal of the
Existing Credit Facility are not more restrictive than those in the
Existing Credit Facility being extended or renewed, (d) any restrictions or
encumbrances arising in connection with Refinancing Indebtedness; provided
that any restrictions and encumbrances of the type described in this clause
(d) that arise under such Refinancing Indebtedness are not more restrictive
than those under the agreement creating or evidencing the Indebtedness
being refunded or refinanced, (e) any agreement restricting the sale or
other disposition of property securing Indebtedness permitted by this
Indenture if such agreement does not expressly restrict the ability of a
Subsidiary of the Company to pay dividends or make loans or advances, (f)
reasonable and customary borrowing base covenants set forth in credit
agreements evidencing Indebtedness otherwise permitted by this Indenture
which covenants restrict or limit the distribution of revenues or sale
proceeds from real estate or a real estate project based upon the amount of
Indebtedness outstanding on such real estate or real estate project and the
value of some or all of the remaining real estate or the project's
remaining assets, and (g) any restrictions under any instrument creating or
evidencing any Acquisition Debt that was permitted to be Incurred pursuant
to this Indenture and the Securities of any series and which (1) only apply
to assets that were subject to such restrictions and encumbrances prior to
the acquisition of such assets by the Company or any of its Restricted
Subsidiaries and (2) were not created in connection with, or in
contemplation of, such acquisition, and any restrictions replacing those
permitted by this clause (g) which are not more restrictive than, and do
not extend to any Persons or assets other than the Persons or assets
subject to, the restrictions and encumbrances so replaced.
Section 6.17 Maintenance of Consolidated Tangible Net Worth
(a) In the event the Consolidated Tangible Net Worth of the Company
for any two consecutive fiscal quarters is less than $115,000,000, within
30 days after the end of each such period the Company will so notify the
Trustee in writing by delivery of an Officers' Certificate and will offer
to purchase from all Holders (a "Net Worth Offer"), and will purchase from
Holders accepting such Net Worth Offer on the date fixed for the closing of
such Net Worth Offer (the "Net Worth Offer Date"), ten percent of the
original Outstanding principal amount of the Securities of each series (the
"Net Worth Amount") at an offer price (the "Net Worth Offer Price") in cash
in an amount equal to 100 percent of the principal amount thereof plus
accrued and unpaid interest, if any, to the Net Worth Offer Date, in
accordance with the procedures set forth in this Section 6.17. To the
extent that the aggregate amount of Securities of each series tendered
pursuant to a Net Worth Offer is less than the Net Worth Amount relating
thereto, then the Company may use the excess of the Net Worth Amount over
the amount of Securities of each series tendered, or a portion thereof, for
general corporate purposes.
<PAGE> 201
(b) In the event the Consolidated Tangible Net Worth of the Company
for any two consecutive fiscal quarters is less than $115,000,000, within
30 days after the end of such period, the Company (with written notice to
the Trustee) or the Trustee at the Company's request (and at the expense of
the Company) will send or cause to be sent by first-class mail, postage
prepaid, to all Holders on the date of the end of the second such
consecutive fiscal quarter, at their respective addresses appearing in the
Security Register, a notice, prepared by the Company advising the Holders
of such series, of such occurrence and of each Holder's rights arising as a
result thereof. Such notice will contain all instructions and materials
necessary to enable Holders to tender their Securities of each series to
the Company. Such notice, which will govern the terms of the Net Worth
Offer, will state:
(i) that the Net Worth Offer is being made pursuant to Section
6.17(a) hereof and the length of time such Net Worth Offer will
remain open;
(ii) that the Holder has the right to require the Company to
repurchase such Holder's Securities of such series at the Net
Worth Offer Price;
(iii) that any Security of such series not tendered will continue to
accrue interest;
(iv) that any Security of such series accepted for payment pursuant
to the Net Worth Offer will cease to accrue interest on the Net
Worth Offer Date;
(v) that the Net Worth Offer Date will be no earlier than 45 days
nor later than 60 days from the date such notice is mailed;
(vi) that Holders electing to have a Security of such series
purchased pursuant to any Net Worth Offer will be required to
surrender the Security of such series, with the appropriate form
on the Security of such series completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice prior to termination of the Net
Worth Offer;
(vii) that Holders will be entitled to withdraw their election if
the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Net Worth Offer,
or such longer period as may be required by law, a telegram,
telex, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security the Holder
delivered for purchase and a statement that such Holder is
withdrawing its election to have the Security of such series
purchased;
<PAGE> 202
(viii) that Holders whose Securities of such series are purchased
only in part will be issued Securities of the same series,
Maturity date, interest rate and Issue Date equal in principal
amount to the unpurchased portion of the Securities of such
series surrendered; and
(ix) information concerning the period and details of the events
requiring the Net Worth Offer and the business of the Company
which the Company in good faith believes will enable such Holders
to make an informed decision (which at a minimum will include (A)
the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the
most recent subsequently filed Quarterly Report on Form 10-Q and
any Current Report on Form 8-K of the Company filed subsequent to
such Quarterly Report (or corresponding successor reports) (or in
the event the Company is not required to prepare any of the
foregoing Forms, the comparable information required pursuant to
Section 6.03(b) hereof); provided that the Company may at its
option incorporate by reference any such filed reports in the
notice, (B) a description of material developments in the
Company's business subsequent to the date of the latest of such
reports, and (C) if material, appropriate pro forma financial
information).
(c) In the event the aggregate principal amount of Securities of such
series surrendered by Holders exceeds the Net Worth Amount, the Company
will select the Securities of such series to be purchased on a pro rata
basis from all Securities of such series so surrendered, with such
adjustments as may be deemed appropriate by the Company so that only
Securities of any series in denominations of $1,000, or integral multiples
thereof, will be purchased. To the extent that the Net Worth Amount
remaining is less than $1,000, the Company may use such Net Worth Amount
for general corporate purposes. Holders whose Securities of such series are
purchased only in part will be issued new Securities of the same series,
Maturity date, interest rate and Issue Date equal in principal amount to
the unpurchased portion of the Securities of such series surrendered.
(d) The Company will not, and will not permit any Restricted
Subsidiary to, create or permit to exist or become effective any
restriction (other than any restriction set forth in any agreement,
indenture, document or instrument relating to any Existing Indebtedness or
Refinancing Indebtedness with respect thereto) that would materially impair
the ability of the Company to make a Net Worth Offer. Notwithstanding the
foregoing, if a Net Worth Offer is made, the Company will pay for
Securities of any series tendered for purchase in accordance with the terms
of this Section 6.17.
<PAGE> 203
(e) Not later than one Business Day prior to the Net Worth Offer Date
in connection with which the Net Worth Offer is being made, the Company
will (i) accept for payment Securities of each series or portions thereof
tendered pursuant to the Net Worth Offer (on a pro rata basis if required
pursuant to Section 6.17(c) above), (ii) deposit with the Paying Agent
money sufficient, in immediately available funds, to pay the purchase price
of all Securities of each series or portions thereof so accepted and (iii)
deliver to the Paying Agent an Officers' Certificate identifying the
Securities of each series or portions thereof accepted for payment by the
Company. The Paying Agent will promptly after acceptance mail or deliver to
Holders of Securities of such series so accepted payment in an amount equal
to the Net Worth Offer Price of the Securities of such series purchased
from each such Holder, and the Company will execute and the Trustee will
promptly authenticate and mail or deliver to such Holder a new Security of
the same series, Maturity date, interest rate and Issue Date equal in
principal amount to any unpurchased portion of the Security of such series
surrendered. Any Securities of such series not so accepted will be promptly
mailed or delivered by the Paying Agent at the Company's expense to the
Holder thereof. The Company will publicly announce the results of the Net
Worth Offer on the Net Worth Offer Date. For purposes of this Section
6.17(e), the Company will choose a Paying Agent which will not be the
Company or a Subsidiary thereof. Any excess cash held by the Trustee after
the expiration of the Net Worth Offer will be returned to the Company.
(f) Any Net Worth Offer will be conducted by the Company in compliance
with applicable law, including, without limitation, Section 14(e) of the
Exchange Act and Rule 14e-1 thereunder, if applicable.
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or into, or sell,
lease, convey or otherwise dispose of all or substantially all of its
assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which such sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
<PAGE> 204
Default has occurred and is continuing, (iii) immediately after giving
effect to such transaction and the use of any net proceeds therefrom on a
pro forma basis, the Consolidated Tangible Net Worth of the Company or the
Successor, as the case may be, would be at least equal to the Consolidated
Tangible Net Worth of the Company immediately prior to such transaction and
(iv) the ratio of the Company's or the Successor's Indebtedness (excluding
Non-Recourse Indebtedness) to Consolidated Tangible Net Worth contained in
Section 6.13(a) hereof of the Company or the Successor, as the case may be,
immediately after giving effect to such transaction, would be such that the
Company or the Successor, as the case may be, would be entitled to Incur at
least $1 of additional Indebtedness under such ratio.
(b) The Company will deliver to the Trustee prior to the consummation
of the proposed transaction an Officers' Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and
such supplemental indenture comply with this Indenture.
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect to
Securities of any series, means any of the following events (whatever the
reason for such Event of Default and whether it will 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):
<PAGE> 205
(i) the failure by the Company to pay interest on any Security of
that series when the same becomes due and payable and the
continuance of any such failure for a period of 30 days;
(ii) the failure by the Company to pay the principal of any
Security of that series when the same becomes due and payable at
Maturity, upon acceleration or otherwise (including the failure
to make payment pursuant to a Change of Control Offer or a Net
Worth Offer);
(iii) the failure by the Company to make any sinking fund payment
when the same becomes due and payable by the terms of a Security
of that series and Article 5 hereof;
(iv) the failure by the Company to comply with any of its
agreements or covenants in, or provisions of, the Security of
that series or this Indenture (other than an agreement or
covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series) and such
failure continues for the period and after the notice specified
below;
(v) the acceleration of any Indebtedness (other than Non-Recourse
Indebtedness) for borrowed money or guarantees thereof of the
Company or any of its Subsidiaries that has an outstanding
principal amount of $10,000,000 or more in the aggregate;
provided that, in the event any such acceleration is withdrawn or
otherwise rescinded within a period of five days after such
acceleration by the holders of such Indebtedness, any Event of
Default under this Section 8.01(a)(v) will be deemed to be cured
and any acceleration hereunder will be deemed withdrawn or
rescinded;
(vi) the failure by the Company or any of its Subsidiaries to
make any principal or interest payment in respect of Indebtedness
(other than Non-Recourse Indebtedness) for borrowed money or
guarantees thereof of the Company or any of its Subsidiaries with
an outstanding aggregate amount of $10,000,000 or more within
five days of such principal or interest payment becoming due and
payable (after giving effect to any applicable grace period set
forth in the documents governing such Indebtedness);
(vii) a final judgment or judgments that exceed $10,000,000 or
more in the aggregate, for the payment of money, having been
entered by a court or courts of competent jurisdiction against
the Company or any of its Subsidiaries and such judgment or
judgments is not satisfied, stayed, annulled or rescinded within
60 days of being entered;
(viii) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
<PAGE> 206
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(ix) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Material Subsidiary
as debtor in an involuntary case,
(B) appoints a Custodian of the Company or any Material
Subsidiary or a Custodian for all or substantially all of the
property of the Company or any Material Subsidiary, or
(C) orders the liquidation of the Company or any Material
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
or
(x) any other Event of Default provided with respect to
Securities of that series.
(b) The Trustee will not be deemed to know of a Default unless a Trust
Officer has actual knowledge of such Default or receives written notice of
such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least
25 percent in aggregate principal amount of the Outstanding Securities of
all series affected thereby notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 60 days after
receipt of the notice. The notice must specify the Default, demand that it
be remedied and state that the notice is a "Notice of Default." If such a
Default is cured within such time period, it ceases.
<PAGE> 207
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default with respect to the
Company specified in clause (viii) or (ix) of Section 8.01(a) hereof)
occurs and is continuing, the Trustee (after receiving indemnities from the
Holders to its satisfaction) by notice to the Company, or the Holders of at
least 25 percent in aggregate principal amount of the Outstanding
Securities of such series by notice to the Company and the Trustee, may
declare all Outstanding Securities of such series to be due and payable
immediately. Upon such declaration, the amounts due and payable on the
Securities of such series, as determined in Section 8.02(b) hereof, will be
due and payable immediately. If an Event of Default specified in clause
(viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will ipso
facto become and be immediately due and payable without any declaration,
notice or other act on the part of the Trustee and the Company or any
Holder. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series by written notice to the Trustee and
the Company may waive such Event of Default, rescind an acceleration and
its consequences (except an acceleration due to nonpayment of principal or
interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
(b) In the event that the maturity of the Securities of any series is
accelerated pursuant to Section 8.02(a) hereof, 100 percent of the
principal amount of the Securities of such series (or in the case of a
default under Section 8.01(a)(ii) or (iv) hereof resulting from a breach of
the covenant set forth in Section 6.14 hereof, 101 percent of the principal
amount of the Securities of such series) will become due and payable plus
accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect
the payment of principal or interest on the Securities of any series or to
enforce the performance of any provision of the Securities of any series or
this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Securities of any series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default will not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
<PAGE> 208
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
Section 8.05 Control by Majority
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.06 Limitations on Suits
(a) A Holder may pursue a remedy with respect to this Indenture or the
Securities of any series only if:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of
that series;
(ii) the Holder(s) of at least 25 percent in aggregate principal
amount of all of the Outstanding Securities of that series make a
written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series do not give the Trustee a direction inconsistent with the
request.
(b) A Holder of a Security of any series may not use this Indenture to
prejudice the rights of another Holder or to obtain a preference or
priority over another Holder.
<PAGE> 209
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder.
Section 8.08 Collection Suit by Trustee
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Company, its creditors or property and
will be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any
Custodian 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 consents to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to 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 9.07 hereof.
Nothing contained herein will 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 8.10 Priorities
(a) Subject to Article 16 hereof, in the event the Trustee collects
any money pursuant to this Article 8, it will pay out the money in the
following order:
<PAGE> 210
FIRST: to the Trustee for amounts due under Section 9.07 hereof;
SECOND: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
the Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally entitled
thereto.
(b) The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 8.10.
Section 8.11 Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
Section 8.12 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 the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
<PAGE> 211
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
will exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in such exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations will be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof, the
Trustee will examine the certificates and opinions to determine
whether or not, on their face, they appear to conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own gross
negligent action, its own gross negligent failure to act, or its own
willful misconduct, except that:
(i) this Section 9.01(c) does not limit the effect of Section
9.01(b) hereof;
(ii) the Trustee will not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that
the Trustee was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Trustee will not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 9.05 hereof or when
exercising any other trust or power conferred upon the Trustee
under this Indenture.
<PAGE> 212
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it has reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) The Trustee will not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law. Subject to Sections 9.03 and 9.07 hereof,
all money received by the Trustee will, until applied as herein provided,
be held in trust for the payment of principal and interest on the
Securities.
(f) The Trustee shall not be required to give any bond or surety in
respect of the exercise of its powers and performance of its duties
hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in acting or
refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document 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 determines to make
such further inquiry or investigation, it will be entitled to
examine the books, records, and premises of the Company,
personally or by agent or attorney;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate. The Trustee will not be liable
for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate. The Trustee may consult
with counsel satisfactory to it and the written advice of such
counsel or any Opinion of Counsel will 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;
(iii) the Trustee may act through agents and will not be
responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds
deposited with it or in an account within its dominion and
control;
<PAGE> 213
(iv) the Trustee will not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by this Indenture;
and
(v) unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company will be
sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise and may refuse
to exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders 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.
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication. The immunities and exemptions from
liability of the Trustee hereunder shall extend to its directors, officers,
employees and agents.
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series or a breach of the Change of
Control covenant, the Trustee may withhold such notice if and so long as a
committee of its Trust Officers in good faith determines that withholding
the notice is in the interests of such Holders.
<PAGE> 214
Section 9.06 Reports by Trustee to Holders
(a) Within 60 days after each May 15, beginning with May 15, 1999, the
Trustee will mail to Holders a brief report dated as of such reporting date
that complies with TIA Section 313(a); provided, however, if no event
described in TIA Section 313(a) has occurred within such calendar year, no
report need be transmitted. The Trustee also will comply with TIA Sections
313(b) and 313(c).
(b) A copy of each report at the time of its mailing to Holders will
be filed with the SEC and each stock exchange, if any, on which the
Securities of any series are listed. The Company will notify the Trustee
when the Securities of any series are listed on any stock exchange.
Section 9.07 Compensation and Indemnity
(a) The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation will not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(ii) 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, without limitation, the reasonable
compensation and the expenses, advances and disbursements of
its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross
negligence or bad faith; and
(iii) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on their
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending themselves against any claim or
liability in connection with the exercise or performance of
any of their powers or duties hereunder.
(b) To secure the Company's payment obligations in this Section 9.07,
the Trustee will have a Lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 8.01(a)(viii) or (a)(ix) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
<PAGE> 215
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 9.08.
(b) The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company in writing. The Holders of a majority
in principal amount of the Outstanding Securities of any series may remove
the Trustee by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(i) the Trustee fails to comply with Section 9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company will promptly appoint a
successor Trustee.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least ten percent in principal amount of the
Outstanding Securities of any series may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 9.10 hereof, any
Holder may petition any court of competent jurisdiction for the removal of
the Trustee with respect to such series and the appointment of a successor
Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee will become effective, and
the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of
its succession to the Holders. The retiring Trustee will promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 9.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 9.08, the Company's obligations under
Section 9.07 hereof will continue for the benefit of the retiring Trustee.
<PAGE> 216
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee consolidates,
merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the successor corporation
without any further act will be the successor Trustee; provided that in the
case of a transfer of all or substantially all of its corporate trust
business to another corporation, the transferee corporation expressly
assumes all of the Trustee's liabilities hereunder.
(b) In case any Securities have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated, with the same effect as if
such successor Trustee had itself authenticated such Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which will (i) be a
corporation organized and doing business under the laws of the United
States, any state thereof or the District of Columbia, authorized under
such laws to exercise corporate trustee power, (ii) be subject to
supervision or examination by federal or state (or the District of
Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(2). The Trustee is
subject to TIA Section 310(b). If at any time the Trustee ceases to be
eligible in accordance with the provisions of this Section 9.10, it will
resign immediately in the manner and with the effect specified in Section
9.08 hereof.
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
<PAGE> 217
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days before each Interest
Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series of
Securities as of the Regular Record Date of such Interest Payment
Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.2 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
<PAGE> 218
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities 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: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.17, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.17 inclusive, and any other
covenants specified in or pursuant to this Indenture) and 8.01(a)(x) shall
<PAGE> 219
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(x), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
Section 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10
hereof and agrees to comply with the provisions of this
Article 11 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 Outstanding Securities of such
series, (A) money in an amount, or (B) U.S. Government
Obligations that 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, money in an amount, or (C) a
combination thereof, in each case 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 any such other
qualifying trustee) to pay and discharge, (1) the principal
<PAGE> 220
of and interest on the Securities of such series on the
respective Stated Maturities (or redemption date, if
applicable) of such principal or installment of interest and
(2) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities on the
day on which such payments are due and payable in accordance
with the terms of this Indenture and such Securities;
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. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 4.02 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 4
hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in
applying the foregoing.
(ii) In the case of an election under Section 11.02 hereof,
the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from,
or there has been published by, the Internal Revenue Service
a ruling or (B) since the date first set forth hereinabove,
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 the
Outstanding 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 be the case if such deposit,
Defeasance and discharge were not to occur.
(iii) In the case of an election under Section 11.03 hereof,
the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
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 be the case if such deposit and Covenant
Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of
such series, if then listed on any securities exchange, will
not be delisted as a result of such Defeasance or Covenant
Defeasance.
(v) No Default or Event of Default shall have occurred and
be continuing at the time of such deposit.
<PAGE> 221
(vi) Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default
within the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the
Company is a party or by which it is bound.
(viii) 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 3.01 hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent
with respect to such Defeasance or Covenant Defeasance have
been complied with.
(x) No event or condition shall exist that, pursuant to the
provisions of Article 16 hereof, would prevent the Company
from making payments of the principal of or interest on the
Securities of such series 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).
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 11.05 Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
<PAGE> 222
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust 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 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company any money
or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it with respect to Outstanding Securities of any
Defeasible Series that are in excess of the amount thereof that was used to
pay the Securities of such series upon Maturity.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series by reason of any notification, 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 the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 11 with respect to Securities
of such series until such time as the Trustee or Paying Agent is permitted
to apply all money held in trust pursuant to Section 11.05 hereof with
respect to Securities of such series in accordance with this Article 11;
provided, however, that if the Company makes any payment of principal of or
interest on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
<PAGE> 223
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) 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
(i) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities of such series
which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 hereof,
and (ii) Securities 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, as provided in
Section 6.04 hereof) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (1) or
(2) below, not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity within one year, or
(3) 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 (1), (2) or (3) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount
in cash sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
redemption date, as the case may be;
<PAGE> 224
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, 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 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest 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 13
SUPPLEMENTAL INDENTURES
Seciton 13.1 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture or the
Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii)to provide for uncertificated Securities in
addition to certificated Securities;
(iv) to make any change that does not adversely affect
the legal rights hereunder of any Holder of a Security
of any series; (ii) to add to the covenants of the
Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities,
stating that such covenants are expressly being
included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Company;
<PAGE> 225
(v) to add any additional Events of Default for the
benefit of the Holders of all or any series of
Securities (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);
(vi) to change or eliminate any of the provisions of
this Indenture in respect of one or more series of
Securities; provided that any such addition, 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;
(vii) to establish the form or terms of Securities of
any series as permitted by Sections 2.01 and 3.01
hereof;
(viii) to evidence and provide for the acceptance of
appointment hereunder of 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 9.08 hereof;
(ix) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to
implement the provisions of Article 11 hereof or
discharge of any series of Securities pursuant to
Sections 12.01 and 12.02 hereof; provided that any such
action shall not adversely affect the interests of the
Holders of Securities of such series or any other
series in any material respect; or
(x) to comply with the qualification of this Indenture
under the TIA.
(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described
in Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements
and stipulations that may be contained therein. After an amendment or
waiver under this Section 13.01 becomes effective, the Company will
mail to the Holders of each Security affected thereby a notice
describing the amendment or waiver. Any failure of the Company to mail
such notice, will not, however, affect the validity of any such
supplemental indenture.
<PAGE> 226
Section 13.02 Supplemental Indentures With Consent of Holders
(a) Except as provided below in this Section 13.02, the Company
and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a
tender offer or exchange offer for Securities) of the Holders of at
least a majority in principal amount of the Outstanding Securities of
each series affected by such amendment.
(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 13.06 hereof, the Trustee will
join with the Company in the execution of such supplemental indenture.
(c) It will not be necessary for the consent of the Holders under
this Section 13.02 to approve the particular form of any proposed
amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in
a particular instance by the Company with any provision of this
Indenture (including waivers obtained in connection with a tender
offer or exchange offer for Securities). However, without the consent
of each Holder of an Outstanding Security affected thereby, an
amendment or waiver under this Section 13.02 may not:
(i) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security 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), or
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of
whose Holders is required for any such amendment, or
the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences
provided for in this Indenture, or
<PAGE> 227
(iii) modify any of the provisions of this Section or
Section 8.07, except to increase any such percentage or
to provide that certain other provisions of this
Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify the provisions of this Indenture relating
to the subordination of the Securities in a manner
adverse to the Holders.
(e) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and
the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such
Holder has been the Holder of record of any Securities of any series
with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in
accordance with the terms of this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or waiver
becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security
or portion of a Security if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective.
An amendment or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
<PAGE> 228
(b) The Company may, but will not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to
any amendment or waiver. If the Company elects to fix a record date
for such purpose, the record date will be fixed at (i) the later of 30
days prior to the first solicitation of such consent or the date of
the most recent list of Holders furnished to the Trustee prior to such
solicitation pursuant to Section 10.02 hereof or (ii) such other date
as the Company will designate. If a record date is fixed, then
notwithstanding the provisions of Section 13.04(a) hereof, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, will be entitled to consent to such
amendment or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No
consent will be valid or effective for more than 90 days unless
consents from Holders of the principal amount of Securities required
hereunder for such amendment or waiver to be effective have also been
given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it will bind
every Holder of a Security of any series affected thereby, unless it
is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a
Security that evidences the same debt as the consenting Holder's
Security.
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
<PAGE> 229
Section 13.07 Subordination Unimpaired
This Indenture may not be amended to alter the
subordination of any Outstanding Securities without the written consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
Section 14.02 Notices
(a) Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing
next day delivery, to the other's address:
If to the Company:
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77252-2863
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2815
Attention: Corporate Trust Agency & Administration
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
<PAGE> 230
(c) All notices and communications will be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged by the Trustee's
transmission result report, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
(d) Any notice or communication to a Holder will be mailed by
first-class, postage-prepaid mail, return receipt requested, to the
Holder's address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will
not affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
(f) If the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
<PAGE> 231
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
The Company, with advance approval by the Trustee, will
fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Security held by a Depository
entitled under the procedures of such Depository to make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
in this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Persons who are such beneficial owners at the close of
business on such record date or their duly appointed proxy or proxies will
be entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other actions, whether or not such
Persons remain such beneficial owners after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action will be valid or effective if made, given or taken more than six
months after such record date.
Section 14.05 Proof of Execution of Instruments and Holding of Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any such
Person of any instrument may be proved by the
certificate of any notary public or other officer of
any jurisdiction authorized to take acknowledgments of
deeds to be recorded in such jurisdiction that the
Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness
to such execution sworn to before any such notary or
other officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where
Securities are not held by Persons in their individual
capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
<PAGE> 232
(3) The ownership of Securities shall be proved by the
Securities Register for such Security or by a
certificate of the Registrar.
(4) The Trustee shall not be bound to recognize any
Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include the
statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include the
statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied
with.
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) will include:
(i) a statement that the Person making such certificate
or opinion has read such condition or covenant;
(ii) 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;
<PAGE> 233
(iii) a statement that, in the opinion of such Person,
such Person has made such examination or investigation
as is necessary to enable him or her to express an
informed opinion as to whether or not such condition or
covenant has been complied with; and
(iv) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been
complied with.
(b) Any Officers' Certificate may be based, insofar as it relates
to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise
of reasonable care should know that the same is erroneous. Any Opinion
of Counsel may be based, insofar as it relates to factual matters,
upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, or other Persons or firms deemed
appropriate by such counsel, unless such counsel has actual knowledge
that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of Counsel
may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may
be an employee of the Company), or firm of accountants, unless such
Officer or counsel, as the case may be, has actual knowledge that the
certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous.
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 Section No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Section Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
<PAGE> 234
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent
and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Indebtedness and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
<PAGE> 235
Section 14.19 Acceptance of Trust
IBJ Whitehall Bank & Trust Company, the Trustee named
herein, hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
sECTION 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
(A) to give any notice to the Company or to the Trustee, or to
give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action
authorized to be taken by Holders pursuant to any of the provisions of
this Indenture;
(B) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Section 9.08 hereof;
(C) to consent to the amendment of the provisions contained herein
and the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Article 13 hereof; or
(D) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Outstanding Securities under any other provision of this Indenture
or under applicable law.
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, 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 mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
<PAGE> 236
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
<PAGE> 237
ARTICLE 16
SUBORDINATION; SENIORITY
Section 16.01 Securities Subordinated to Senior Indebtedness
(a) The Company agrees, and each Holder of a Security of any
series by such Holder's acceptance thereof likewise agrees, that the
payment of the principal of, and interest on (including, without
limitation, interest accruing subsequent to the filing of a petition
under applicable Bankruptcy Law or the appointment of a Custodian),
the Securities of each series hereunder are subordinated and junior in
right of payment, to the extent and in the manner provided in this
Article 16, except as provided in Section 9.07, to the prior payment
in full in cash or Cash Equivalents of all Senior Indebtedness whether
outstanding on the Issue Date of the Securities or created, incurred,
assumed or guaranteed thereafter.
(b) All the provisions of this Indenture and the Securities of
any series will be subject to the provisions of this Article 16 so far
as they may be applicable thereto, except that nothing in this Article
16 will apply to claims for, or payments to, the Trustee under or
pursuant to Section 9.07 hereof.
Section 16.02 Company Not to Make Payments with Respect to Securities in
Certain Circumstances
(a) No payment will be made by the Company on account of
principal of or interest on the Securities of any series, nor may the
Company purchase or otherwise acquire such Securities for cash or
property (other than Capital Stock or other securities of the Company
that are subordinated to Senior Indebtedness to at least the same
extent as the Securities), if at the time of such payment or
immediately after giving effect thereto there will have occurred and
be continuing (i) a default in the payment of principal of (or
premium, if any, on) or interest on any Designated Senior Indebtedness
continuing beyond the applicable period of grace, if any, specified in
the applicable instrument, lease, contract, agreement or other
document evidencing such Designated Senior Indebtedness, or (ii) a
default, other than a payment default as specified in clause (i) of
this Section 16.02(a), that permits the holders of Designated Senior
Indebtedness to accelerate the maturity thereof, and the Trustee shall
have received notice thereof from the trustee or other representative
of the holders of Designated Senior Indebtedness, which notice shall
request that payment of principal of or interest on the Securities be
prohibited, (provided, however, that in the case of Designated Senior
Indebtedness issued pursuant to an indenture, such notice may be
validly given only by the trustee under such indenture); provided,
that the foregoing will not prohibit payments made pursuant to
Articles 11 or 12 hereof from monies deposited with the Trustee
pursuant thereto prior to any such default, judicial proceeding or
notice.
<PAGE> 238
(b) Notwithstanding Section 16.02(a) hereof, the Company shall
resume payments on the Securities of any series and may acquire such
Securities upon the earlier of:
(i) the date upon which the default or event of default
as specified in Section 16.02(a) hereof is cured or
waived or ceases to exist, or
(ii) in the case of an event of default as specified in
clause (ii) of Section 16.02(a), the expiration of 179
days after such notice as set forth in clause (ii) of
such Section 16.02(a) is received (each such period
under this clause (ii) of Section 16.02(b), a "Payment
Blockage Period").
Notwithstanding anything in this Section 16.02(b) to the contrary, (A) only
one such Payment Blockage Period may be commenced within any 365
consecutive day period and (B) in no event will a Payment Blockage Period
extend beyond 179 days from the date the payment on the Securities of any
series is due. For purposes of this Section 16.02, no default which, to the
knowledge of the trustee or other representative of Designated Senior
Indebtedness, existed or was continuing on the date of the commencement of
any Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by such trustee or
representative, whether or not within a period of 365 consecutive days,
unless such default shall have been cured or waived or shall have ceased to
exist, or the benefits of this Section 16.02(b) shall have been waived in
writing by such trustee or representative for a period of not less than 90
consecutive days.
(c) Upon any acceleration of the principal of the Securities of
any series or any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or
liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due or to become due upon all Senior
Indebtedness (including, without limitation, interest accruing
subsequent to the filing of a petition under applicable Bankruptcy Law
or the appointment of a Custodian) will first be paid in full in cash
or Cash Equivalents, or payment thereof provided for, before any
payment is made on account of the principal of or interest on the
Securities (except payments made pursuant to Articles 11 or 12 hereof
from monies deposited with the Trustee pursuant thereto prior to the
happening of such dissolution, winding up, liquidation or
reorganization); and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the
Trustee would be entitled except for the provisions of this Article
16, will (except as aforesaid) be paid by the Company or by any
<PAGE> 239
Custodian or other Person, or by the Holders or the Trustee, making
such payment or distribution directly to the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary so
that the holders of all Senior Indebtedness have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness,
before any payment or distribution is made to the Holders except that
Holders shall be entitled to receive securities that are subordinated
to Senior Indebtedness to at least the same extent as the Securities.
(d) If the Trustee or any Holder does not file a proper claim or
proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is
hereby authorized, and has the right, to file an appropriate claim or
claims for or on behalf of the Trustee or such Holder.
(e) In the event that, notwithstanding the foregoing, any payment
by or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing,
is received by the Trustee or the Holders before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, or provision
is made for such payment in cash or Cash Equivalents, such payment or
distribution will be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay the holders of all Senior Indebtedness in full in
cash or Cash Equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior
Indebtedness, and, until so delivered, the same will be held in trust
by the Trustee or any Holder as the property of the holders of Senior
Indebtedness (but subject to the power of a court of competent
jurisdiction to make other equitable provision, which will have been
determined by such court to give effect to the rights conferred in
this Article 16 upon the Senior Indebtedness and the holders thereof
with respect to the Securities or the Holders or the Trustee, by a
lawful plan of reorganization or readjustment under applicable
Bankruptcy Laws). The Trustee will not have any obligation or duty to
recover any such amounts so distributed.
<PAGE> 240
(f) The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon
the terms and conditions provided in Article 7 hereof will not be
deemed a dissolution, winding up, liquidation or reorganization for
the purposes of this Section 16.02 if such other corporation will, as
a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article 7 hereof. Nothing in this
Section 16.02 will prohibit or apply to claims of, or payments to, the
Trustee under or pursuant to Section 9.07 hereof.
(g) The holders of Senior Indebtedness may, at any time and from
time to time, without the consent of, or notice to, the Holders or the
Trustee, without incurring responsibility to the Holders or the
Trustee and without impairing or releasing the rights of any holder of
Senior Indebtedness or in any way altering or affecting any of the
provisions of this Article 16: (i) change the amount, manner, place or
terms of payment or change or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding, (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness, (iii) release any Person
liable in any manner for the collection of Senior Indebtedness, and
(iv) exercise or refrain from exercising any rights against the
Company and any other Person.
Section 16.03 Subrogation of Securities
(a) Subject to the payment in full of all Senior Indebtedness at
the time outstanding, the Holders will be subrogated (without any duty
on the part of the holders of Senior Indebtedness to warrant, create,
effectuate, preserve or protect each subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of and interest on the Securities
will be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any
cash, property or securities to which the Holders or the Trustee on
their behalf would be entitled except for the provisions of this
Article 16, and no payments over pursuant to the provisions of this
Article 16, to the holders of Senior Indebtedness by Holders, or the
Trustee on their behalf, will, as between the Company, its creditors
(other than holders of Senior Indebtedness), and the Holders, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article 16
are and are intended solely for the purpose of defining the relative
rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other.
<PAGE> 241
(b) Nothing contained in this Article 16 or elsewhere in this
Indenture or in the Securities of any series is intended to or will
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders the
principal of and interest on the Securities of each series as and when
the same will become due and payable in accordance with their terms,
or is intended to or will affect the relative rights of the Holders
and creditors of the Company other than the holders of Senior
Indebtedness, nor will anything herein or therein prevent the Trustee
or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 16 of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article 16, the Trustee and the Holders will be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or certificate
of the Custodian or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of
ascertaining the holders of Senior Indebtedness and other Indebtedness
of the Company and the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 16.
Section 16.04 Authorization by Holders
Each Holder by such Holder's acceptance of a Security of
any series authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate, as
between the Holder and the holders of Senior Indebtedness, the
subordination provided in this Article 16 and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.
Section 16.05 Notices to Trustee
(a) The Company will give prompt written notice in the form of an
Officers' Certificate to the Trustee of any fact known to the Company
which would prohibit the making of any payment of monies to or by the
Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16. Notwithstanding the provisions of this
Article 16 or any other provision of this Indenture, the Trustee will
not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the
<PAGE> 242
Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16, unless and until the Trustee will have
received at its Corporate Trust Office written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from a
representative or trustee therefor; provided, that in the case of
Senior Indebtedness issued pursuant to an indenture, such notice may
be validly given only by the trustee under such indenture; and before
the receipt of any such written notice, the Trustee will be entitled
in all respects to assume that no such facts exist; provided further,
that if the Trustee will not have received, at least three Business
Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Security of any
series), with respect to such monies, the notice provided for in this
Section 16.05, then, anything herein contained to the contrary
notwithstanding, the Trustee will have the full power and authority to
receive such monies and to apply the same to the purpose for which
they were received and will not be affected by any notice to the
contrary which may be received by it within three Business Days prior
to such date.
(b) The Trustee will be entitled to rely on the delivery to it of
a written notice by a Person representing himself or herself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or a representative on behalf of any such
holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 16, the Trustee may request such
Person to provide evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness 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 16, 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.
(c) Notwithstanding anything to the contrary hereinbefore set
forth, nothing will prevent any payment by the (i) Company or the
Trustee to the Holders of monies in connection with a redemption of
Securities of any series if (A) notice of such redemption had been
given pursuant to Article 4 hereof prior to the receipt by the Company
or the Trustee, as applicable, of written notice as aforesaid, and (B)
such notice of redemption is given not earlier than 60 days before the
redemption date, or (ii) Trustee to the Holders of amounts deposited
with the Trustee pursuant to Articles 11 or 12 hereof.
(d) The Company agrees that if any default occurs with respect to
any Senior Indebtedness, which default permits the holders of such
Senior Indebtedness to accelerate the maturity thereof, the Company
will give prompt notice in writing of such happening to all known
holders of Senior Indebtedness and will certify to each such holder
the name of the Trustee and current notice address.
<PAGE> 243
Section 16.06 Trustee's Relation to Senior Indebtedness
(a) The Trustee in its individual capacity will be entitled to
all the rights set forth in this Article 16 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 9.03 or
elsewhere in this Indenture will deprive the Trustee of any of its
rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 16, and
no implied covenants or obligations with respect to the holders of
Senior Indebtedness will be read into this Indenture against the
Trustee. The Trustee will not owe any fiduciary duty to the holders of
Senior Indebtedness but will have only such obligations to such
holders as are expressly set forth in this Article 16.
Section 16.07 No Impairment of Subordination
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided will 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 an act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 16.08 Article 16 Not to Prevent Events of Default
No provision of this Article 16 will prevent the
occurrence of an Event of Default hereunder.
Section 16.09 Paying Agents Other Than the Trustee
In any case at any time any Paying Agent other than the
Trustee has been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 16 will in such case (unless the
context will otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such place of the Trustee; provided, however, that Sections 16.05 and
16.06 hereof will not apply to the Company or any Subsidiary if it acts as
Paying Agent.
<PAGE> 244
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
--------------------
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:
---------------------
Name:
Title:
<PAGE> 245
Exhibit 4.3
FORM OF
SUBORDINATED INDENTURE,
dated as of _________ __, ____,
between
U.S. HOME CORPORATION
and
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
<PAGE> 246
CROSS-REFERENCE TABLE
TIA
Section Indenture Section
310(a)(1)........................... 9.10
(a)(2)........................... 9.10
(a)(3)........................... N.A.
(a)(4)........................... N.A.
(b).............................. 9.08; 9.10
(c).............................. N.A.
311(a).............................. 9.11
(b).............................. 9.11
(c).............................. N.A.
312(a).............................. 10.01; 10.02
(b).............................. 10.02; 14.03
(c).............................. 10.02
313(a).............................. 9.06
(b)(1)........................... 9.06
(b)(2)........................... 9.06
(c).............................. 9.06
(d).............................. 9.06
314(a).............................. 6.03
(b).............................. N.A.
(c)(1)........................... 14.07; 14.08
(c)(2)........................... 14.07; 14.08
(c)(3)........................... 14.08
(d).............................. N.A.
(e).............................. 14.08
(f).............................. N.A.
315(a).............................. 9.01
(b).............................. 9.05
(c).............................. 9.01
(d).............................. 9.01
(e).............................. 8.11
316(a)(last sentence)............... 8.05
(a)(1)(A)........................ 8.05
(a)(1)(B)........................ 8.04
(a)(2)........................... Not applicable
(b).............................. 8.07
317(a)(1)........................... 8.08
(a)(2)......................... 8.09
(b)............................ 3.05
318(a).............................. 14.01
N.A. means not applicable
Note: This cross-reference table will not, for any
purpose, be deemed to be a part of this
Indenture.
<PAGE> 247
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..... 1
Section 1.01 Rules of Construction ............... 1
Section 1.02 Definitions.......................... 2
Affiliate............................ 2
Agent................................ 2
Bankruptcy Law....................... 2
Board of Directors................... 2
Board Resolution..................... 2
Business Day......................... 2
Capital Stock........................ 2
Cash Equivalents..................... 2
Common Equity........................ 3
Company.............................. 3
Company Request or Company Order..... 3
Corporate Trust Office of the Trustee 3
Covenant Defeasance.................. 3
Custodian............................ 3
Default.............................. 3
Defaulted Interest................... 3
Defeasance........................... 3
Defeasible Series.................... 3
Depository........................... 3
Designated Senior Indebtedness....... 3
DTC.................................. 4
Event of Default..................... 4
Exchange Act......................... 4
GAAP................................. 4
Global Security...................... 4
Holder............................... 4
Indenture............................ 4
Interest Payment Date................ 4
Issue Date........................... 4
Legal Holiday........................ 4
Material Subsidiary.................. 5
Maturity............................. 5
Non-Recourse Indebtedness ........... 5
Officer.............................. 5
Officers' Certificate................ 5
<PAGE> 248
Opinion of Counsel................... 5
Outstanding.......................... 5
Paying Agent......................... 6
Person............................... 6
Place of Payment..................... 6
Registrar............................ 6
Regular Record Date.................. 6
SEC.................................. 6
Securities........................... 7
Security Register.................... 7
Senior Indebtedness.................. 7
Special Record Date.................. 7
Stated Maturity...................... 7
Subsidiary........................... 8
Successor............................ 8
TIA.................................. 8
Trustee.............................. 8
Trust Officer........................ 8
U.S. Government Obligations.......... 8
Section 1.03 Incorporation by Reference of TIA.... 8
ARTICLE 2 SECURITY FORMS................................. 9
Section 2.01 Forms Generally...................... 9
Section 2.02 Form of Legend for Global Securities. 9
Section 2.03 Form of Trustee's Certificate of
Authentication...................... 10
ARTICLE 3 THE SECURITIES................................. 10
Section 3.01 Amount Unlimited; Issuable in Series 10
Section 3.02 Denominations........................ 13
Section 3.03 Execution, Authentication, Delivery
and Dating........................... 13
Section 3.04 Temporary Securities................. 15
Section 3.05 Registration, Registration of
Transfer and Exchange................ 16
Section 3.06 Mutilated, Destroyed, Lost and
Stolen Securities.................... 19
Section 3.07 Payment of Interest; Interest
Rights Preserved..................... 20
Section 3.08 Persons Deemed Owners................ 22
Section 3.09 Cancellation......................... 22
Section 3.10 Computation of Interest.............. 22
<PAGE> 249
ARTICLE 4 REDEMPTION..................................... 23
Section 4.01 Applicability of Article............. 23
Section 4.02 Election to Redeem; Notice to
Trustee.............................. 23
Section 4.03 Selection of Securities to Be
Redeemed............................. 23
Section 4.04 Notices to Holders................... 23
Section 4.05 Effect of Notice of Redemption....... 24
Section 4.06 Deposit of Redemption Price.......... 24
Section 4.07 Securities Redeemed in Part.......... 25
Section 4.08 Optional Redemption.................. 25
ARTICLE 5 SINKING FUNDS.................................. 25
Section 5.01 Applicability of Article............. 25
Section 5.02 Satisfaction of Sinking Fund
Payments with Securities............. 26
Section 5.03 Redemption of Securities for
Sinking Fund......................... 26
ARTICLE 6 COVENANTS...................................... 27
Section 6.01 Payment of Securities................ 27
Section 6.02 Maintenance of Office or Agency...... 28
Section 6.03 SEC Reports; Financial Statements.... 28
Section 6.04 Money for Security Payments to
Be Held in Trust..................... 29
Section 6.05 Compliance Certificate............... 30
Section 6.06 Corporate Existence, etc............. 31
Section 6.07 Payment of Taxes and Other Claims.... 31
Section 6.08 Insurance............................ 31
Section 6.09 Stay, Extension and Usury Laws....... 31
Section 6.10 Maintenance of Properties............ 32
ARTICLE 7 SUCCESSORS..................................... 32
Section 7.01 Limitations on Mergers and
Consolidations....................... 32
Section 7.02 Successor Corporation Substituted.... 32
ARTICLE 8 DEFAULTS AND REMEDIES.......................... 33
Section 8.01 Events of Default.................... 33
Section 8.02 Acceleration......................... 35
Section 8.03 Other Remedies....................... 36
Section 8.04 Waiver of Past Defaults and
Compliance With Indenture Provisions 36
Section 8.05 Control by Majority................. 36
Section 8.06 Limitations on Suits................ 37
Section 8.07 Rights of Holders to Receive Payment 37
Section 8.08 Collection Suit by Trustee.......... 37
Section 8.09 Trustee May File Proofs of Claim.... 38
Section 8.10 Priorities.......................... 38
Section 8.11 Undertaking for Costs............... 38
Section 8.12 Restoration of Rights and Remedies.. 39
ARTICLE 9 TRUSTEE....................................... 39
Section 9.01 Duties of Trustee................... 39
Section 9.02 Rights of Trustee................... 40
Section 9.03 Individual Rights of Trustee........ 41
Section 9.04 Trustee's Disclaimer................ 41
Section 9.05 Notice of Defaults.................. 42
Section 9.06 Reports by Trustee to Holders....... 42
Section 9.07 Compensation and Indemnity.......... 42
Section 9.08 Replacement of Trustee.............. 43
Section 9.09 Successor Trustee by Merger, etc.... 44
Section 9.10 Eligibility; Disqualification ...... 44
Section 9.11 Preferential Collection of Claims
Against Company..................... 45
<PAGE> 250
ARTICLE 10 HOLDERS' LISTS................................ 45
Section 10.01 Company to Furnish Trustee Names
and Addresses of Holders............ 45
Section 10.02 Preservation of Information......... 45
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE............ 46
Section 11.01 Company's Option to Effect
Defeasance or Covenant Defeasance... 46
Section 11.02 Defeasance and Discharge............ 46
Section 11.03 Covenant Defeasance................. 46
Section 11.04 Conditions to Defeasance or
Covenant Defeasance................. 47
Section 11.05 Deposited Money and U.S.
Government Obligations to Be Held
in Trust; Other Miscellaneous
Provisions.......................... 49
Section 11.06 Reinstatement....................... 50
ARTICLE 12 SATISFACTION AND DISCHARGE.................... 50
Section 12.01 Satisfaction and Discharge
of Indenture........................ 50
Section 12.02 Application of Trust Money.......... 51
ARTICLE 13 SUPPLEMENTAL INDENTURES....................... 52
Section 13.01 Supplemental Indentures Without
Consent of Holders.................. 52
Section 13.02 Supplemental Indentures With
Consent of Holders.................. 53
Section 13.03 Compliance With TIA................. 55
Section 13.04 Revocation and Effect of Consents... 55
Section 13.05 Notation on or Exchange of Securities 55
Section 13.06 Trustee to Sign Amendments, etc. 56
Section 13.07 Subordination Unimpaired ........... 56
ARTICLE 14 MISCELLANEOUS................................. 56
Section 14.01 TIA Controls........................ 56
Section 14.02 Notices............................. 56
Section 14.03 Communication by Holders
With Other Holders.................. 57
Section 14.04 Action by Securityholders .......... 57
Section 14.05 Proof of Execution of Instruments
and Holding of Securities........... 58
Section 14.06 Obligation to Disclose Beneficial
Ownership of Securities............. 59
Section 14.07 Certificate and Opinion as
to Conditions Precedent............. 59
Section 14.08 Statements Required in
Certificate or Opinion.............. 59
Section 14.09 Rules by Trustee and Agents......... 60
Section 14.10 No Recourse Against Others.......... 61
Section 14.11 Governing Law....................... 61
Section 14.12 No Adverse Interpretation of Other
Agreements.......................... 61
Section 14.13 Successors.......................... 61
<PAGE> 251
Section 14.14 Severability........................ 61
Section 14.15 Counterpart Originals............... 61
Section 14.16 Trustee as Paying Agent and Registrar 61
Section 14.17 Table of Contents, Headings, etc. 62
Section 14.18 Benefits of Indenture............... 62
Section 14.19 Acceptance of Trust................. 62
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES............. 62
Section 15.01 Purposes of Meetings................ 62
Section 15.02 Call of Meetings by Trustee......... 63
Section 15.03 Call of Meetings by Company or
Securityholders..................... 63
Section 15.04 Person Entitled to Vote at Meeting 63
Section 15.05 Regulations for Meeting............. 63
ARTICLE 16 SUBORDINATION; SENIORITY...................... 64
Section 16.01 Securities Subordinated to Senior
Indebtedness........................ 64
Section 16.02 Company Not To Make Payments with
Respect to Securities in Certain
Circumstances....................... 65
Section 16.03 Subrogation of Securities........... 67
Section 16.04 Authorization by Holders............ 68
Section 16.05 Notices to Trustee.................. 69
Section 16.06 Trustee's Relation to Senior
Indebtedness........................ 70
Section 16.07 No Impairment of Subordination...... 70
Section 16.08 Article 16 Not to Prevent Events
of Default.......................... 70
Section 16.09 Paying Agents Other Than the Trustee 70
<PAGE> 252
INDENTURE, dated as of _________ __, ____, between U.S. Home
Corporation, a Delaware corporation, and IBJ Whitehall Bank & Trust
Company, a banking organization organized under the laws of New York, as
trustee.
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities") to
be issued in one or more series as provided herein.
B. All things necessary have been done to make the Securities, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make
this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises and the
acquisition 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 any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Rules of Construction
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) 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 hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and transactions.
Section 1.02 Definitions
Capitalized terms used herein will have the following respective
meanings when used herein:
<PAGE> 253
"Affiliate" of any Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control
with, such Person. For purposes of this Indenture, each executive officer
and director of the Company will be an Affiliate of the Company. In
addition, for purposes of this Indenture, control of a 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.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means title 11 of the United States Code, as amended,
or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of a Person or any
authorized committee of the board of directors of such Person.
"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" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however
designated) the equity (which includes, but is not limited to, common
stock, preferred stock and partnership and joint venture interests) of such
Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Cash Equivalents" means any of the following, to the extent owned by
the Company, free and clear of all liens and having a maturity of not
greater than 90 days from the date of issuance thereof: (i) readily
marketable direct obligations of the United States or any agency or
instrumentality thereof or obligations unconditionally guaranteed by the
full faith and credit of the United States, (ii) insured certificates of
deposit of or time deposits with any commercial bank that (a) is a member
of the Federal Reserve System, (b) issues (or the parent of which issues)
commercial paper rated as described in clause (iii) below, (c) is organized
under the laws of the United States or any State thereof and (d) has
combined capital and surplus of at least $1,000,000,000 or (iii) commercial
paper in an aggregate amount of no more than $5,000,000 per issuer
outstanding at any time, issued by any corporation organized under the laws
of any State of the United States or the District of Columbia that is not
an Affiliate of the Company and rated at least "Prime-1" (or the then
equivalent grade) by Moody's Investor Service, Inc. or "A-1" (or the then
equivalent grade) by Standard & Poor's Corporation.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled (i) to vote in the election of directors of such
Person, or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or
others that will control the management and policies of such Person.
<PAGE> 254
"Company" means U.S. Home Corporation, a Delaware corporation, and any
successor thereof.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its
President, its Senior Vice President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Corporate Trust Office of Trustee" will be at the address of the
Trustee specified in Section 14.02 hereof or such other address as the
Trustee may give notice to the Company.
"covenant Defeasance" has the meaning set forth in Section 11.03
hereof.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Defeasamce" has the meaning set forth in Section 3.07 hereof.
"Defeasible Series" has the meaning set forth in Section 11.02 hereof.
"Defeasible Series" has the meaning set forth in Section 11.01 hereof.
"Depository" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act
as Depository for such Securities as contemplated by Section 3.01.
"Designated Senior Indebtedness" means (i) Senior Indebtedness
permitted to be incurred pursuant to this Indenture under or in respect of
an institutional credit agreement, including the Existing Credit Facility,
and (ii) any other Senior Indebtedness permitted to be incurred pursuant to
this Indenture the principal amount of which is $25,000,000 or more.
"DTC" has the meaning set forth in Section 2.02 hereof.
"Event of Default" has the meaning set forth in Section 8.01(a)
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
<PAGE> 255
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession of the United States, as in effect on the
Issue Date of the Securities of any series.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depository for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is registered.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the TIA that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of
particular series of Securities established as contemplated by Section 3.01
hereof upon receipt by the Trustee of an Opinion of Counsel in accordance
with Section 3.03 hereof.
"Interest Payment Date", when used with respect to a Security of any
series, means the Stated Maturity of an installment of interest on such
Security.
"Issue Date" means the date of original issuance of the Securities of
each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which banking
institutions in New York, New York or at a Place of Payment are authorized
or obligated by law, regulation or executive order to remain closed. If a
payment date is a Legal Holiday at a Place of Payment, payment shall be
made at that place on the next succeeding day that is not a Legal Holiday
and no interest shall accrue for the intervening period.
"Material Subsidiary" has the meaning set forth in the Indenture,
dated as of June 21, 1993, between the Company and IBJ Schroder Bank &
Trust Company, as trustee, relating to the Company's 9 3/4% Senior Notes
due 2003 as in effect on the date hereof.
"Maturity", when used with respect to a Security of any series, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
<PAGE> 256
"Non-Recourse Indebtedness" has the meaning set forth in the
Indenture, dated as of June 21, 1993, between the Company and IBJ Schroder
Bank & Trust Company, as trustee, relating to the Company's 9 3/4% Senior
Notes due 2003 as in effect on the date hereof.
"Officer" means the Chairman of the Board, the President, the Senior
Vice President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificiate" means a certificate signed by two Officers,
one of whom must be the Person's Chief Executive Officer (or Co-Chief
Executive Officer), Chief Operating Officer, Chief Financial Officer or
Chief Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; (ii) Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities as to which the Defeasance has been effected
pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
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, (a)
the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 3.01 hereof on
the Issue Date of such Security, of the principal amount of such Security,
<PAGE> 257
and (b) Securities owned by the Company or any other obligor of the
Securities or any Subsidiary of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Subsidiary of the Company or of such other obligor.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of or any interest on any Securities of
any series.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity
of any kind.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest on
the Securities of that series are payable as specified as contemplated by
Section 3.01 hereof.
"Registrar" has the meaning set forth in Section 3.05 hereof.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified for that purposes
contemplated by Section 3.01 hereof.
"SEC" means the Securities and Exchange Commission, and any successor
thereto.
"Securities" has the meaning set forth in the first recital of this
Indenture and more particularly means any securities of any series
authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section 3.05 hereof.
"Senior Indebtedness" means the principal of (and premium, if any)
and interest on (including, without limitation, interest accruing
subsequent to the filing of a petition under applicable Bankruptcy Law or
the appointment of a Custodian), (i) any and all indebtedness and
obligations of the Company (including indebtedness of others guaranteed by
the Company), whether or not contingent and whether or not outstanding on
the Issue Date of the Securities of any series or thereafter created,
incurred or assumed, including, without limitation, all charges, fees,
expenses (including, without limitation, reasonable attorneys' fees and
expenses and other amounts incurred by or owing to holders of such
indebtedness), which (a) is for money borrowed, (b) is evidenced by any
bond, note, debenture or similar instrument, (c) represents the unpaid
<PAGE> 258
balance on the purchase price of any property, business or asset of any
kind, d) is an obligation of the Company as lessee under any and all leases
of property, equipment or other assets required to be capitalized on the
balance sheet of the lessee under GAAP, (e) is a reimbursement obligation
of the Company with respect to letters of credit, (f) is an obligation of
the Company with respect to an interest swap obligation or a foreign
exchange agreement or (g) is an obligation of another secured by a lien to
which any of the properties or assets (including, without limitation,
leasehold interests and any other tangible or intangible property rights)
of the Company are subject, whether or not the obligation secured thereby
will have been assumed by the Company or will otherwise be the Company's
legal liability and (ii) any deferrals, amendments, renewals, extensions,
modifications and refundings of any indebtedness or obligations of the
types referred to above; provided that Senior Indebtedness will not include
(A) (x) the Securities of any series or (y) the Company's 4-7/8%
Convertible Subordinated Debentures due 2005, (B) any indebtedness or
obligation of the Company (or the instrument creating or evidencing it)
which expressly provides that such indebtedness is not superior in right of
payment to the Securities of any series or which expressly provides that
such indebtedness is subordinate in right of payment to all other
indebtedness of the Company (including the Securities of any series), (C)
any indebtedness or obligation of the Company to any of its Subsidiaries
and (D) any indebtedness or obligation incurred by the Company in
connection with the purchase of assets, materials or services in the
ordinary course of business and which constitutes a trade payable.
"Special Record Date" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 3.07 hereof.
"Stated Maturity", when used with respect to any Security of any
series or any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or interest is
due and payable.
"Subsidiary" of any Person means (i) any corporation of which at least
a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly beneficially owned by such Person, and
(ii) any entity other than a corporation of which such Person directly or
indirectly beneficially owns at least a majority of the Common Equity.
"Successor" has the meaning set forth in Section 7.01(a) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"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 the Person who is then the
Trustee hereunder.
"Trust Officer" means any Senior Vice President, Vice President,
Assistant Vice President, Assistant Secretary or Assistant Treasurer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
<PAGE> 259
"U.S. Government Obligations" means (i) any security that is (a) a
direct obligation of the United States for the payment of which the full
faith and credit of the United States is pledged or (b) an obligation of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case (a) or (b), is not callable or
redeemable at the option of the issuer thereof, and (ii) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with respect to any U.S. Government
Obligation specified in clause (i) and held by such custodian for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S. Government
Obligation; 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
Section 1.03 Incorporation by Reference of TIA
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this
Indenture.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to
an Officers' Certificate or a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistent herewith, be
determined by the Officers executing such Security as evidenced by their
execution of such Security. If temporary Securities of any series are
issued as Global Securities as permitted by Section 3.04 hereof, the form
thereof shall also be established as provided in the previous sentence. If
the form of Securities of any series is established by action taken
pursuant to an Officers' Certificate or a Board Resolution, a copy thereof
shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.03 hereof for the authentication
and delivery of such Securities. If all of the Securities of any series
established by action taken pursuant to an Officers' Certificate or a Board
Resolution are not to be issued at one time, it shall not be necessary to
<PAGE> 260
deliver a copy thereof at the time of issuance of each Security of such
series, but such Officers' Certificate or Board Resolution shall be
delivered at or prior to the time of issuance of the first Security of such
series.
Securities shall be printed, lithographed or engraved or produced by
any combination of these methods 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.
Section 2.02 Form of Legend for Global Securities
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Global Security is
exchangeable for Securities registered in the name of a Person other than
the Depository or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in such limited
circumstances. Every Security delivered upon registration of transfer of,
or in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is to be made to Cede & Co. or to such other entity
as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
<PAGE> 261
Section 2.03 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
IBJ Whitehall Bank & Trust Company
As Trustee
By.................................
Authorized Officer
ARTICLE 3
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and
the Securities of each such series shall rank equally and pari passu with
the Securities of each other series, but all Securities issued hereunder
shall be subordinated and junior in right of payment, to the extent and in
the manner set forth in Article 16, to all Senior Indebtedness of the
Company. There shall be established in or pursuant to a Board Resolution
and, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
which, in each case, shall be deemed incorporated herein by this reference
and made a part hereof but only with respect to the series of Securities
established pursuant to such Board Resolution, Officer's Certificate or
supplemental indenture, prior to the issuance of Securities of any series
the following:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
<PAGE> 262
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 4.07 or 13.05 hereof and except for any
Securities which, pursuant to Section 3.03 hereof, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates, or the method by which such date
or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) 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 any
such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any 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 actual days elapsed over a 365 or
366-day year;
(6) the place or places, if any, other than or in
addition to New York, New York, where the principal of and
interest on Securities of the series shall be payable, any
Securities of the series may be surrendered for registration of
transfer, Securities of the same series may be surrendered for
exchange and, if different from the location specified in Section
14.02 hereof, 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;
(7) the period or periods within, the price or prices at
and the terms and conditions upon, which Securities of the series
may be redeemed or purchased, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem or
repurchase Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and
the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series
shall be redeemed or repurchased, in whole or in part, pursuant to
such obligation;
<PAGE> 263
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and interest on any Securities of the
series shall be payable if other than the currency of the United
States and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of
"Outstanding" in Section 1.01 hereof;
(11) if the principal of or interest on any Securities of
the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which
payment of the principal of and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(12) if the amount of payments of principal of or interest
on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(13) if other than the principal amount of the Securities
of any series, the portion of the principal amount of such
Securities which shall be payable upon declaration of acceleration
of the Maturity thereof;
(14) if applicable, that the Securities of the series
shall be defeasible as provided in Article 11 hereof;
(15) if and as applicable, that the Securities of the
series shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depository or
Depositories for such Global Security or Global Securities and any
circumstances other than those set forth in Section 3.05 hereof in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of,
a Person other than the Depository for such Global Security or a
nominee thereof and in which any such transfer may be registered;
(16) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
<PAGE> 264
(17) if other than the Trustee, the identity of each
Paying Agent and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy thereof shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.02 Denominations
In the absence of any specified denomination with respect
to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company
by two Officers, under its corporate seal reproduced thereon. The signature
of any of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities. The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities.
An authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such an agent. An authenticating agent
has the same rights as an Agent to deal with the Company. The Company shall
pay the reasonable fees and expenses of any authenticating agent.
<PAGE> 265
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Officers' Certificate or
Board Resolutions as permitted by Sections 2.01 and 3.01 hereof, 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:
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution or an Officers'
Certificate as permitted by Section 2.01 hereof, that such form or
forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been established
by or pursuant to a Board Resolution or an Officers' Certificate
as permitted by Section 3.01 hereof, that such terms have been
established in conformity with the provisions of this Indenture;
and
(3) that such Securities, 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 legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to
general equity principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities.
Notwithstanding the provisions of Section 3.01 hereof and
of the preceding paragraph, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate or Board Resolution otherwise required pursuant to
Section 3.01 hereof or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at the time of issuance of
each Security of such series, but such documents shall be delivered at or
prior to the time of issuance of the first Security of such series.
Notwithstanding the immediately preceding sentence, any subsequent request
by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by
the Company that, as of the date of such request, the statements made in
the Opinion of Counsel delivered pursuant to this Section 3.03 shall be
true and correct as if made on such date.
<PAGE> 266
The Trustee shall have the right to refuse to
authenticate and deliver such Securities if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or officers of
the Trustee shall determine that such action would expose the Trustee to
personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Each Security shall be dated the date of its
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder 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 3.09 hereof together with a Company
Order (which need not comply with Section 14.08 hereof and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued or 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.
Section 3.04 Temporary Securities
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the Officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
Every temporary Security shall be executed by the Company
and authenticated by the Trustee and registered by the Registrar, upon the
same conditions, and with like effect, as a definitive Security.
<PAGE> 267
If temporary Securities (other than a Global Security) of
any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange a like aggregate principal amount of
definitive Securities of the same series of authorized denominations. Until
so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive
Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
(a) The Company shall maintain a register of the
Securities of each series including any Global Security (the "Security
Register") in an office or agency of the Company in a Place of Payment (the
"Registrar") where, subject to Section 3.05(c) hereof and such reasonable
regulations as the Company may prescribe, Securities may be presented for
registration of transfer or for exchange. The Company may appoint one or
more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for
registration of transfer of any Security of any series at the office or
agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount.
Subject to Section 3.05(c), at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or its attorney duly authorized in writing.
<PAGE> 268
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 4.07 or 13.05
hereof not involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of that series selected for
redemption under Section 4.08 hereof and ending at the close of business on
the day of such mailing, or (ii) to register the transfer or exchange of
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) 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.
(b) In case the Company, pursuant to Article 7 hereof,
will be consolidated or merged with or into any other Person or will
convey, transfer or lease substantially all of its properties and assets to
any Person, and the Successor resulting from such consolidation, or
surviving such merger, or into which the Company will have been merged, or
the Person which will have received a conveyance, transfer or lease as
aforesaid, will have executed an indenture supplemental hereto with the
Trustee pursuant to Article 7 hereof, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer or
lease may, from time to time, at the request of the Successor, be exchanged
for other Securities executed in the name of the Successor with such
changes in phraseology and form as may be appropriate, but otherwise in
substance and of like tenor as the Securities surrendered for such exchange
and of like principal amount; and the Trustee, upon receipt of an Officers'
Certificate from the Successor, will authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities
will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or
substitution for or upon registration of transfer of any Securities, such
Successor, at the option of the Holders but without expense to them, will
provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any
series are to be issued in whole or in part in the form of one or more
Global Securities, authenticate and deliver one or more Global Securities
that will (i) represent and will be denominated in an amount equal to the
aggregate outstanding principal amount of the Securities to be represented
by such Global Security or Securities, (ii) be registered in the name of
the Depository for such Global Security or Securities or the nominee of
such Depository, (iii) be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) bear the legends set
forth in Section 2.02 hereof.
<PAGE> 269
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at
all times while it serves as Depository, be a clearing agency registered
under the Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section
3.05(c), unless and until it is exchanged in whole for Securities in
definitive form of any series, a Global Security representing all or a
portion of the Securities of any series may not be transferred except as a
whole by the Depository to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository or
by such Depository or any such nominee to a successor Depository or a
nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will
appoint a successor Depository. If (i) a successor Depository is not
appointed by the Company within 90 days after the Company receives notice
from the Depository or otherwise becomes aware of such unwillingness,
inability or ineligibility or (ii) an Event of Default has occurred and is
continuing, the Company will execute and deliver to the Trustee as promptly
as practicable Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of such Securities,
and the Trustee, as promptly as practicable after the receipt of such
Securities and Officers' Certificate, will authenticate and deliver
Securities in definitive form in an aggregate principal amount equal to the
principal amount of, and containing terms and provisions identical to, the
Global Security or Securities in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or
more Global Securities will no longer be represented by such Global
Security or Securities. In such event, the Company will execute and deliver
to the Trustee Securities in definitive form, together with an Officers'
Certificate relating to the authentication and delivery of Securities in
definitive form, and the Trustee, as promptly as practicable after the
receipt of such Securities in definitive form and Officers' Certificate,
will authenticate and deliver Securities in definitive form in an aggregate
principal amount equal to the principal amount of, and containing terms and
provisions identical to, the Global Security or Securities in exchange for
such Global Security or Securities.
Upon the exchange of a Global Security in whole or in
part for Securities in definitive form, such Global Security shall be
cancelled by the Trustee. Securities in definitive form issued in exchange
for a Global Security pursuant to this Section 3.05(c) will be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, will instruct the Trustee in writing. The Trustee will deliver
<PAGE> 270
such Securities in definitive form to the Persons in whose names such
Securities are so registered or as it may otherwise be directed by the
Depository. Upon the exchange of less than the entire principal amount of a
Global Security for Securities in definitive form, the Company will also
execute, and the Trustee, upon receipt of an Officers' Certificate will
also authenticate and deliver, a new Global Security in aggregate principal
amount equal to the difference between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver Securities in definitive form in authorized
denominations.
If a Security in definitive form is issued in exchange
for any portion of a Global Security after the close of business at the
office or agency where such exchange occurs on or after any Regular Record
Date for an Interest Payment Date and before the opening of business at
such office or agency on the next Interest Payment Date, interest will not
be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Security in definitive form, but will
be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the
Trustee, any Paying Agent or the Registrar will have any responsibility or
liability for any aspect of the Depository's records relating to or
payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any of the
Depository's records relating to such beneficial ownership interests.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
<PAGE> 271
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be
required by them and to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon receipt of a Company Order the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, instruct the Paying
Agent to pay such Security.
Upon the issuance of any new Security under this Section
3.06, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security,
shall constitute an original additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved
Except as otherwise provided as contemplated by Section
3.01 hereof with respect to any series of Securities, interest on any
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security 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 6.02 hereof.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date 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 (i) or (ii) below:
<PAGE> 272
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date
of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money (except as otherwise
specified pursuant to Section 3.01 hereof for the Securities of
such series) 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
mailed, first class postage prepaid, to each Holder of Securities
of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date
and notice shall be considered given whether or not received by
the Holder. If notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor have been so mailed,
such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of the securities
exchange on which such Securities may be listed, if any, and upon
such written 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.
The provisions of this Section 3.07 may be applicable to
any series of Securities pursuant to Section 3.01 hereof (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 3.01 hereof).
<PAGE> 273
Subject to the foregoing provisions of this Section 3.07
and Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners
Subject to Section 3.05(c), prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (except as contemplated by Section
3.05 hereof and subject to Section 3.07 hereof) interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company
or Trustee shall be affected by notice to the contrary.
Section 3.09 Cancellation
All Securities surrendered for payment, redemption,
repayment at the option of the Holder, if applicable, 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 and 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 accompanied by an
Officers' Certificate authorizing such cancellation, and 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 as directed by a Company Order.
Section 3.10 Computation of Interest
Except as otherwise specified as contemplated by Section
3.01 hereof for Securities of any series, interest on the Securities of
each series shall be computed on the basis of a 365 or 366-day year.
<PAGE> 274
ARTICLE 4
REDEMPTION
Section 4.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their
terms and in accordance with this Article 4.
Section 4.02 Election to Redeem; Notice to Trustee
In the event the Company elects to redeem Securities of
any series pursuant to the optional redemption provisions of Section 4.08
hereof, it will notify the Trustee in writing, at least 30 days but not
more than 60 days before a redemption date, of the redemption date and the
principal amount of Securities of a series to be redeemed.
Section 4.03 Selection of Securities to Be Redeemed
(a) In the event less than all of the Outstanding
Securities of a series are to be redeemed, the Trustee will select the
Securities of such series to be redeemed pro rata or by lot or by any other
method the Trustee deems fair and appropriate but only in integral
multiples of $1,000. The particular Securities of a series to be redeemed
will be selected, unless otherwise provided herein, not less than 20 nor
more than 60 days prior to the redemption date by the Trustee from the
Outstanding Securities of such series not previously called for redemption.
(b) The Trustee will promptly notify the Company in
writing of the Securities of such series selected for redemption and, in
the case of any Security of a series selected for partial redemption, the
principal amount thereof to be redeemed but not in integral multiples of
less than $1,000. Provisions of this Indenture that apply to Securities of
a series called for redemption also apply to portions of Securities of a
series called for redemption.
Section 4.04 Notices to Holders
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose
Securities are to be redeemed.
(b) The notice will identify the Securities of the series
to be redeemed and will state:
(i) the redemption date;
(ii) the redemption price;
<PAGE> 275
(iii) if any Outstanding Security of any series is
being redeemed in part, the portion of the principal amount of
such Security to be redeemed and that, after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must
be surrendered to the Paying Agent at the address specified in
such notice to collect the redemption price;
(vi) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund, if
such is the case;
(viii) the aggregate principal amount of Securities
that are being redeemed; and
(ix) that funds for the redemption price shall be
deposited in accordance with Section 4.06 hereof, failing which
the notice shall be deemed cancelled.
(c) At the Company's written request, the Trustee will
give the notice required in this Section 4.04 in the Company's name and at
its expense.
Section 4.05 Effect of Notice of Redemption
Once notice of redemption is mailed, Outstanding
Securities of such series called for redemption become due and payable on
the redemption date at the redemption price and, subject to Section 4.06(b)
hereof, interest on such Securities ceases to accrue on and after the
redemption date.
Section 4.06 Deposit of Redemption Price
(a) At least one Business Day prior to the redemption
date, the Company will deposit with the Trustee or with the Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.04 hereof) money sufficient to pay the
redemption price of, and accrued and previously unpaid interest on, all
Securities of such series to be redeemed on that date, and the Trustee will
remit the redemption price to Holders entitled thereto. The Trustee or the
Paying Agent will return to the Company any money not required for that
purpose.
<PAGE> 276
(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be
redeemed (whether or not such Securities are presented for payment) will
cease to accrue on the applicable redemption date. If any Security of such
series called for redemption is not so paid upon surrender because of the
failure of the Company to comply with Section 4.06(a) hereof, then interest
will be paid on the unpaid principal from the last Interest Payment Date
until such principal is paid in full at the rate determined pursuant to
Section 3.01 hereof for the Securities of such series.
Section 4.07 Securities Redeemed in Part
Upon surrender of a Security of such series that is
redeemed in part, the Company will issue and the Trustee will authenticate
for the Holder at the expense of the Company a new Security of the same
series, maturity date, interest rate and Issue Date equal in principal
amount to the unredeemed portion of the Security of such series
surrendered.
Section 4.08 Optional Redemption
The Company may redeem all or any portion of the
Outstanding Securities of any series at any time and from time to time that
are redeemable before their maturity except as otherwise specified as
contemplated by Section 3.01 hereof for Securities of such series at the
redemption prices together in each case, with accrued interest, if any, to
the date fixed for redemption, determined pursuant to Section 3.01 hereof.
ARTICLE 5
SINKING FUNDS
Section 5.01 Applicability of Article
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant
to any sinking fund shall be made in accordance with their terms and in
accordance with this Article 5.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.02 hereof.
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.
<PAGE> 277
Section 5.02 Satisfaction of Sinking Fund Payments with Securities
Subject to Section 5.03 hereof, 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 (i) deliver
to the Trustee Outstanding Securities of a series (other than any
previously called for redemption) theretofore purchased or acquired by the
Company and/or (ii) receive credit for the principal amount of Securities
of a 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 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 5.03 Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering or
crediting Securities of that series pursuant to Section 5.02 hereof (which
Securities will, if not previously delivered, accompany such Officers'
Certificate) and whether the Company intends to exercise its right to make
a permitted optional sinking fund payment with respect to such series. Such
Officers' 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 Officers'
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 5.02 hereof and without the right to make
any optional sinking fund payment, if any, with respect to such series.
<PAGE> 278
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 4.03
hereof 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 4.04
hereof. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Article
4 hereof.
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 6.04
hereof) in cash a sum equal to any interest that will accrue to the date
fixed for redemption of Securities or portion thereof to be redeemed on
such sinking fund payment date pursuant to this Section 5.03.
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 Company shall not instruct the Trustee to 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 as negotiated by the Company, 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 6
COVENANTS
Section 6.01 Payment of Securities
(a) The Company will pay the principal of, and interest
on, the Securities of each series on the dates and in the manner provided
herein and in the Securities. In the event the Company is not the Paying
Agent, principal and interest will be considered paid on the date due if
the Trustee or Paying Agent holds on that date money deposited by the
Company designated for and sufficient to pay all principal and interest
then due. In the event the Company is the Paying Agent, principal and
interest will be considered paid on the date actual payment is mailed, or
otherwise sent or given to, the Holders entitled to such payments.
<PAGE> 279
(b) The Company will pay interest on overdue principal at
the applicable interest rate on the Securities of each series as determined
in accordance with Section 3.01 hereof.
Section 6.02 Maintenance of Office or Agency
(a) The Company will maintain in each Place of Payment
for any series of Securities, in New York, New York, an office or agency
(which may be an office of the Trustee or the Registrar) where Securities
of such series may be presented or surrendered for payment, where
Securities of that series may be presented for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of
the Securities of such 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 fails to maintain any such required office or agency or fails 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.
(b) The Company may also from time to time designate one
or more other offices or agencies where the Securities of each series may
be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such
designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York 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.
(c) The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the Company in
accordance with this Section 6.02.
Section 6.03 SEC Reports; Financial Statements
(a) As long as more than 10 percent of the original
principal amount of the Securities of any series is Outstanding, the
Company will (i) remain subject to the requirements of Section 13 or 15(d)
of the Exchange Act whether or not it is required to do so by the
provisions thereof and will file with the SEC all periodic reports as may
be required thereunder and (ii) file with the SEC and the Trustee within 15
days after the Company is required to file the same with the SEC, copies of
the periodic reports which the Company may be required to file with the SEC
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. The Company
will also make such reports available to the Holders, prospective
purchasers of the Securities of any such series, securities analysts and
broker-dealers upon their written request.
<PAGE> 280
(b) In the event that (i) 10 percent or less of the
original principal amount of the Securities of any series is Outstanding
and (ii) the Company is not required to file with the SEC such reports and
other information referred to in Section 6.03(a) hereof, the Company will
furnish to the Trustee (A) within 120 days after the end of each fiscal
year, annual reports containing the information required to be contained in
Items 1, 2, 3, 5, 6, 7, 8 and 9 of the Annual Report on Form 10-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in comparable items of any successor form, (B)
within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to
be contained in the Quarterly Report on Form 10-Q promulgated under the
Exchange Act, or substantially the same information required to be
contained in any successor form and (C) promptly from the time after the
occurrence of an event which would be required to be reported in the
Current Report on Form 8-K if the Company was required to file such Report,
such other reports containing information required to be contained in the
Current Report on Form 8-K promulgated under the Exchange Act, or
substantially the same information required to be contained in any
successor form.
(c) The Company will also comply with the other
provisions of TIA Section 314(a).
Section 6.04 Money for Security Payments to Be Held in Trust
(a) In the event the Company will at any time act as its
own Paying Agent with respect to any series of Securities, it will, not
less than one Business Day before each due date of the principal of or
interest on any of the Securities of any series, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to
pay the principal or interest so becoming due until such sums will be paid
to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure to so act.
(b) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will, not less
than one Business Day before each due date of the principal of or interest
on, any Securities of any series, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of such action or any failure to
so act.
(c) In the event the Company is not acting as Paying
Agent with respect to any series of Securities, the Company will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
<PAGE> 281
(i) hold all sums held by it for the payment of
the principal of or interest on Securities of such series in trust
for the benefit of the Holders of such series of Securities and
the Trustee entitled thereto until such sums will be paid to such
Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any Default by
the Company in the making of any payment of principal or interest;
(iii) 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;
and
(iv) acknowledge, accept and agree to comply in
all aspects with the provisions of this Indenture relating to the
duties, rights and disabilities of such Paying Agent.
(d) 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.
(e) 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 interest on
any Security of any series and remaining unclaimed for two years after such
principal 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 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 a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in New York, New York, 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 notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
Section 6.05 Compliance Certificate
(a) The Company will deliver to the Trustee within 120
days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or Event
of Default that occurred during such period. If they do know of a Default
or an Event of Default, the Officers' Certificate will describe the Default
or Event of Default and the action the Company is taking or proposes to
take with respect thereto.
<PAGE> 282
(b) The Company will give prompt written notice to the
Trustee of the occurrence of any Default or Event of Default.
Section 6.06 Corporate Existence, etc.
Subject to the provisions of Article 7 hereof, the
Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Company, except in
such cases where a failure to do so would not in the judgment of management
have a material adverse effect on the business, prospects, assets or
financial condition of the Company and its Subsidiaries taken as a whole
and would not have a materially adverse impact on the Holders of Securities
of any series.
Section 6.07 Payment of Taxes and Other Claims
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company or
upon the income, profits or property of the Company other than any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made in accordance with GAAP and (ii) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company, in each case except to
the extent the failure to do so would not have, in the judgment of
management, a material adverse effect on the Company and its Subsidiaries
taken as a whole.
Section 6.08 Insurance
The Company will maintain and will cause each of its
Subsidiaries to maintain (either in the name of the Company or in such
Subsidiary's own name) with third party insurance companies or pursuant to
self-insurance, (i) insurance on all their respective properties, (ii)
public liability insurance against claims for personal injury or death as a
result of the use of any products sold by it and (iii) insurance coverage
against other business risks, in each case, in at least such amounts and
against at least such other risks (and with such risk retention) as are
usually and prudently insured against in the same general area by companies
engaged in the same or a similar business.
<PAGE> 283
Section 6.09 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that
may affect the Company's obligation to pay the Securities of each series,
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law insofar as such law applies
to the Securities of each series, and covenants that it will not, by resort
to any such law, 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 has been enacted.
Section 6.10 Maintenance of Properties
The Company will take reasonable action to maintain in
appropriate condition each of its principal properties which in the
judgment of management is essential to the business operations of the
Company and its Subsidiaries taken as a whole and the loss of which would
have a material adverse effect on the financial condition of the Company
and its Subsidiaries taken as a whole. Nothing contained in this Section
6.10 will prevent or restrict the sale, abandonment or other disposition of
any property which management deems advisable.
ARTICLE 7
SUCCESSORS
Section 7.01 Limitations on Mergers and Consolidations
(a) The Company will not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially
all of its assets (including, without limitation, by way of liquidation or
dissolution), or assign any of its obligations hereunder or under the
Securities of any series (as an entirety or substantially an entirety in
one transaction or series of related transactions), to any Person unless:
(i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which sale, lease, conveyance or other
disposition or assignment will be made (collectively, the "Successor"), is
a solvent corporation or other legal entity organized and existing under
the laws of the United States or any state thereof or the District of
Columbia, and the Successor assumes by supplemental indenture in a form
reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii)
immediately after giving effect to such transaction, no Default or Event of
Default has occurred and is continuing, and (iii) the Company will have
delivered to the Trustee prior to the consummation of the proposed
transaction an Officers' Certificate to the foregoing effect and an Opinion
of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
<PAGE> 284
Section 7.02 Successor Corporation Substituted
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets
of the Company or any assignment of its obligations under this Indenture or
the Securities of any series in accordance with Section 7.01 hereof, upon
assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest
on all of the Securities of any series and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed or observed by the Company, the Successor formed by such
consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition or assignment is made will
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
Successor has been named as the Company herein and such Successor may cause
to be signed and may issue in its own name or in the name of the Company,
any or all Securities of any series issuable hereunder and the predecessor
Company, in the case of a sale, lease, conveyance or other disposition or
assignment, will be released from all obligations under this Indenture and
the Securities of any series.
ARTICLE 8
DEFAULTS AND REMEDIES
Section 8.01 Events of Default
(a) "Event of Default", wherever used herein with respect
to Securities of any series, means any of the following events (whatever
the reason for such Event of Default and whether it will 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):
(i) the failure by the Company to pay interest
on any Security of that series when the same becomes due and
payable and the continuance of any such failure for a period of 30
days;
(ii) the failure by the Company to pay the
principal of any Security of that series when the same becomes due
and payable at Maturity, upon acceleration or otherwise;
(iii) the failure by the Company to make any
sinking fund payment when the same becomes due and payable by the
terms of a Security of that series and Article 5 hereof;
<PAGE> 285
(iv) the failure by the Company to comply with
any of its agreements or covenants in, or provisions of, the
Security of that series or this Indenture (other than an agreement
or covenant a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of a series of Securities other than that series) and such failure
continues for the period and after the notice specified below;
(v) the acceleration of any indebtedness (other
than Non-Recourse Indebtedness) for borrowed money or guarantees
thereof of the Company or any of its Subsidiaries that has an
outstanding principal amount of $10,000,000 or more in the
aggregate; provided that, in the event any such acceleration is
withdrawn or otherwise rescinded within a period of five days
after such acceleration by the holders of such indebtedness, any
Event of Default under this Section 8.01(a)(v) will be deemed to
be cured and any acceleration hereunder will be deemed withdrawn
or rescinded;
(vi) the failure by the Company or any of its
Subsidiaries to make any principal or interest payment in respect
of indebtedness (other than Non-Recourse Indebtedness) for
borrowed money or guarantees thereof of the Company or any of its
Subsidiaries with an outstanding aggregate amount of $10,000,000
or more within five days of such principal or interest payment
becoming due and payable (after giving effect to any applicable
grace period set forth in the documents governing such
indebtedness);
(vii) a final judgment or judgments that exceed
$10,000,000 or more in the aggregate, for the payment of money,
having been entered by a court or courts of competent jurisdiction
against the Company or any of its Subsidiaries and such judgment
or judgments is not satisfied, stayed, annulled or rescinded
within 60 days of being entered;
(viii) the Company or any Material Subsidiary
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a
<PAGE> 286
Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for
the benefit of its creditors;
(ix) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
or any Material Subsidiary as debtor in an
involuntary case,
(B) appoints a Custodian of the Company
or any Material Subsidiary or a Custodian for
all or substantially all of the property of the
Company or any Material Subsidiary, or
(C) orders the liquidation of the Company
or any Material Subsidiary,
and the order or decree remains unstayed and in effect for
60 days; or
(x) any other Event of Default provided with
respect to Securities of that series.
(b) The Trustee will not be deemed to know of a Default
unless a Trust Officer has actual knowledge of such Default or receives
written notice of such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an
Event of Default until the Trustee notifies the Company, or the Holders of
at least 25 percent in aggregate principal amount of the Outstanding
Securities of all series affected thereby notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." If such a Default is cured within such time period, it ceases.
Section 8.02 Acceleration
(a) If an Event of Default with respect to Securities of
any series at the time Outstanding (other than an Event of Default with
respect to the Company specified in clause (viii) or (ix) of Section
8.01(a) hereof) occurs and is continuing, the Trustee (after receiving
indemnities from the Holders to its satisfaction) by notice to the Company,
or the Holders of at least 25 percent in aggregate principal amount of the
Outstanding Securities of such series by notice to the Company and the
Trustee, may declare all Outstanding Securities of such series to be due
and payable immediately. Upon such declaration, the amounts due and payable
on the Securities of such series, as determined in Section 8.02(b) hereof,
will be due and payable immediately. If an Event of Default specified in
<PAGE> 287
clause (viii) or (ix) of Section 8.01(a) hereof occurs, such an amount will
ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series by written notice to the Trustee
and the Company may waive such Event of Default, rescind an acceleration
and its consequences (except an acceleration due to nonpayment of principal
or interest on the Securities of such series) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
have been cured or waived.
(b) In the event that the maturity of the Securities of
any series is accelerated pursuant to Section 8.02(a) hereof, 100 percent
of the principal amount of the Securities of such series will become due
and payable plus accrued interest, if any, to the date of payment.
Section 8.03 Other Remedies
(a) If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity
to collect the payment of principal or interest on the Securities of any
series or to enforce the performance of any provision of the Securities of
any series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does
not possess any of the Securities of any series or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default will not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent permitted by
law.
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions
Subject to Sections 8.07 and 13.02 hereof, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of
any series by notice to the Trustee may waive an existing Default or Event
of Default and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities), except a continuing
Default or Event of Default in the payment of the principal of or interest
on any Security of such series. Upon any such waiver, such Default will
cease to exist, and any Event of Default arising therefrom will be deemed
to have been cured for every purpose of this Indenture, but no such waiver
will extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon. Section 8.05 Control by Majority
<PAGE> 288
The Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
(after providing indemnities to the Trustee's satisfaction) or exercising
any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders
of Securities of such series, or that may subject the Trustee to legal
liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.06 Limitations on Suits
(a) A Holder may pursue a remedy with respect to this
Indenture or the Securities of any series only if:
(i) the Holder gives to the Trustee written
notice of a continuing Event of Default with respect to the
Securities of that series;
(ii) the Holder(s) of at least 25 percent in
aggregate principal amount of all of the Outstanding Securities of
that series make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(v) during such 60-day period the Holders of a
majority in aggregate principal amount of the Outstanding
Securities of such series do not give the Trustee a direction
inconsistent with the request.
(b) A Holder of a Security of any series may not use this
Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
Section 8.07 Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security of any series to receive payment of
principal and interest on the Security of such series, on or after the
respective due dates expressed in the Security of such series, or, subject
to Section 8.06 hereof, to bring suit for the enforcement of any such
payment on or after such respective dates, will not be impaired or affected
without the consent of the Holder. Section 8.08 Collection Suit by Trustee
<PAGE> 289
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against
the Company for the amount of principal and interest remaining unpaid on
the Securities of such series, determined in accordance with Section
8.02(b) hereof, and such further amount as will be sufficient to cover the
costs and expenses of collection, including, without limitation, the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 8.09 Trustee May File Proofs of Claim
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including, without limitation, any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Company, its creditors or property and
will be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any
Custodian 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 consents to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to 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 9.07 hereof.
Nothing contained herein will 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 8.10 Priorities
(a) In the event the Trustee collects any money pursuant
to this Article 8, it will pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 9.07
hereof;
SECOND: to Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable
on the Securities for principal and interest, respectively; and
THIRD: to the Company or such other Person legally
entitled thereto.
<PAGE> 290
(b) The Trustee may fix a record date and payment date
for any payment to Holders pursuant to this Section 8.10. Section 8.11
Undertaking for Costs
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section
8.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant
to Section 8.07 hereof, or a suit by Holders of more than ten percent in
aggregate principal amount of all of the Outstanding Securities of any
series.
Section 8.12 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 the Company, the Trustee and the Holders will, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders will continue as though no such proceeding had
been instituted.
ARTICLE 9
TRUSTEE
Section 9.01 Duties of Trustee
(a) If an Event of Default has occurred and is
continuing, the Trustee will exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in such
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties
that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations will be
read into this Indenture against the Trustee; and
<PAGE> 291
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates
or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof,
the Trustee will examine the certificates and opinions to
determine whether or not, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct, except that:
(i) this Section 9.01(c) does not limit the effect
of Section 9.01(b) hereof;
(ii) the Trustee will not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was grossly negligent in ascertaining the
pertinent facts; and
(iii) the Trustee will not be liable with respect
to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
9.05 hereof or when exercising any other trust or power conferred
upon the Trustee under this Indenture.
Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to clauses (i),
(ii) and (iii) of this Section 9.01(c).
(d) No provision of this Indenture will require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Trustee will not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law. Subject to Sections 9.03
and 9.07 hereof, all money received by the Trustee will, until applied as
herein provided, be held in trust for the payment of principal and interest
on the Securities.
<PAGE> 292
(f) The Trustee shall not be required to give any bond or
surety in respect of the exercise of its powers and performance of its
duties hereunder.
Section 9.02 Rights of Trustee
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected
in acting or refraining from acting upon any document believed by
it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter
stated in the document 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 determines to make
such further inquiry or investigation, it will be entitled to
examine the books, records, and premises of the Company,
personally or by agent or attorney;
(ii) before the Trustee acts or refrains from
acting, it may require an Officers' Certificate. The Trustee will
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate. The Trustee may
consult with counsel satisfactory to it and the written advice of
such counsel or any Opinion of Counsel will 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;
(iii) the Trustee may act through agents and will
not be responsible for the misconduct or negligence of any agent
appointed with due care; provided, however, that the Trustee will
in any event be liable for the misappropriation of funds deposited
with it or in an account within its dominion and control;
(iv) the Trustee will not be liable for any
action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers conferred upon it
by this Indenture; and
(v) unless otherwise specifically provided in
this Indenture, any demand, request, direction or notice from the
Company will be sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise
and may refuse to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders 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.
<PAGE> 293
Section 9.03 Individual Rights of Trustee
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. However, the
Trustee is subject to Sections 9.10 and 9.11 hereof.
Section 9.04 Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any series, it will not be
accountable for any actions taken by the Company or any action taken by the
Trustee hereunder at the direction of the Company or in reliance upon an
Opinion of Counsel, and it will not be responsible for any statement or
recital herein or any statement in the Securities of any series other than
its certificate of authentication. The immunities and exemptions from
liability of the Trustee hereunder shall extend to its directors, officers,
employees and agents.
Section 9.05 Notice of Defaults
If a Default or Event of Default with respect to any
series of Securities occurs and is continuing and if it is known to the
Trustee, the Trustee will mail to Holders of such Securities a notice of
the Default or Event of Default within 90 days after it occurs. However,
except in the case of a Default or Event of Default in payment of principal
or interest on any Security of such series, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of such Holders.
Section 9.06 Reports by Trustee to Holders
(a) Within 60 days after each ______, beginning with
____________, the Trustee will mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a); provided,
however, if no event described in TIA Section 313(a) has occurred within
such calendar year, no report need be transmitted. The Trustee also will
comply with TIA Sections 313(b) and 313(c).
(b) A copy of each report at the time of its mailing to
Holders will be filed with the SEC and each stock exchange, if any, on
which the Securities of any series are listed. The Company will notify the
Trustee when the Securities of any series are listed on any stock exchange.
<PAGE> 294
Section 9.07 Compensation and Indemnity
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust);
(ii) 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, without
limitation, the reasonable compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
(iii) to indemnify the Trustee and its agents for,
and to hold them harmless against, any loss, liability or
expense incurred without gross negligence or bad faith on
their part, arising out of or in connection with the
acceptance or administration of this trust, including the
costs and expenses of defending themselves against any
claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
(b) To secure the Company's payment obligations in this
Section 9.07, the Trustee will have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(a)(viii) or (a)(ix)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
Section 9.08 Replacement of Trustee
(a) A resignation or removal of the Trustee and
appointment of a successor Trustee will become effective only upon the
successor Trustee's acceptance of appointment as provided in this Section
9.08.
(b) The Trustee may resign and be discharged from the
trust hereby created by so notifying the Company in writing. The Holders of
a majority in principal amount of the Outstanding Securities of any series
may remove the Trustee by so notifying the Trustee and the Company. The
Company may remove the Trustee if:
<PAGE> 295
(i) the Trustee fails to comply with Section 9.10
hereof;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company will promptly
appoint a successor Trustee.
(d) If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least ten percent in principal
amount of the Outstanding Securities of any series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to any series of
Securities fails to comply with Section 9.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to such series and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance
of its appointment to the retiring Trustee with respect to such series and
to the Company. Thereupon the resignation or removal of the retiring
Trustee will become effective, and the successor Trustee will have all the
rights, powers and duties of the Trustee under this Indenture. The
successor Trustee will mail a notice of its succession to the Holders. The
retiring Trustee will promptly transfer all property held by it as Trustee
to the successor Trustee, subject to the lien provided for in Section 9.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
9.08, the Company's obligations under Section 9.07 hereof will continue for
the benefit of the retiring Trustee.
Section 9.09 Successor Trustee by Merger, etc.
(a) Subject to Section 9.10 hereof, if the Trustee with
respect to any series of Securities consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act will
be the successor Trustee; provided that in the case of a transfer of all or
substantially all of its corporate trust business to another corporation,
the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
<PAGE> 296
(b) In case any Securities of any series have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 9.10 Eligibility; Disqualification
(a) There will at all times be a Trustee hereunder which
will (i) be a corporation organized and doing business under the laws of
the United States, any state thereof or the District of Columbia,
authorized under such laws to exercise corporate trustee power, (ii) be
subject to supervision or examination by federal or state (or the District
of Columbia) authority and (iii) have a combined capital and surplus of at
least $150 million as set forth in its most recent published annual report
of condition.
(b) This Indenture will always have a Trustee who
satisfies the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee is subject to TIA Section 310(b). If at any time the Trustee ceases
to be eligible in accordance with the provisions of this Section 9.10, it
will resign immediately in the manner and with the effect specified in
Section 9.08 hereof.
Section 9.11 Preferential Collection of Claims Against Company
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed will be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE 10
HOLDERS' LISTS
Section 10.01 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 15 days before
each Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of such series of Securities as
of the Regular Record Date of such Interest Payment Date;
and
<PAGE> 297
(b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the
Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that if and so long as the Trustee will be the
Registrar, no such list need be furnished.
Section 10.02 Preservation of Information
The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
of Securities contained in the most recent list furnished to the Trustee as
provided in Section 10.01 hereof and the names and addresses of such
Holders received by the Trustee in its capacity as Registrar or Paying
Agent (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 10.01 hereof upon receipt of a new list so furnished.
ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
Section 11.01 Company's Option to Effect Defeasance or Covenant Defeasance
The Company may elect, at its option by Board Resolution
at any time, to have either Section 11.02 or 11.03 hereof applied to the
Outstanding Securities of any series designated pursuant to Section 3.01
hereof as being defeasible pursuant to this Article 11 (hereinafter called
a "Defeasible Series"), upon compliance with the conditions set forth below
in this Article 11.
Section 11.02 Defeasance and Discharge
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.02 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series as provided in this Section 11.02 on and after
the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series,
which shall thereafter be deemed to be "Outstanding" only for the purposes
of Section 11.05 hereof and the other Sections of this Indenture referred
to in (i) and (ii) below, and to have satisfied all its other obligations
under the Securities of such series and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
<PAGE> 298
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such
series to receive solely from the trust fund described in Section 11.04
hereof and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities of such series when
payments are due, (ii) the Company's obligations with respect to the
Securities of such series under Sections 3.04, 3.05, 3.06, 6.02 and 6.04
hereof, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article 11. Subject to compliance with this
Article 11, the Company may exercise its option provided in Section 11.01
hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series notwithstanding the prior exercise of its option
provided in Section 11.01 hereof to have Section 11.03 hereof applied to
such Outstanding Securities.
Section 11.03 Covenant Defeasance
Upon the Company's exercise of the option provided in
Section 11.01 hereof to have this Section 11.03 applied to the Outstanding
Securities, (i) the Company shall be released from its obligations under
Sections 6.03 and 6.06 through 6.10, inclusive, Article 7, and any other
covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to
any of Sections 6.03 and 6.06 through 6.10 inclusive, and any other
covenants specified in or pursuant to this Indenture) and 8.01(a)(x) shall
be deemed not to be or result in an Event of Default, in each case with
respect to the Outstanding Securities of such series as provided in this
Section 11.03 on and after the date the conditions set forth in Section
11.04 hereof are satisfied (hereinafter called "Covenant Defeasance"), and
such Securities shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent, declaration or act of Holders
(and the consequences thereof) in connection with such covenants, but shall
continue to be "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to such
Outstanding Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or Event of Default under Section 8.01(a)(iv) or
8.01(a)(x), or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
<PAGE> 299
Section 11.04 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
either Section 11.02 or 11.03 hereof to the Outstanding Securities of any
Defeasible Series:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 9.10 hereof and
agrees to comply with the provisions of this Article 11 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 Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that 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, money in an amount, or (C) a combination thereof, in
each case 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 any such
other qualifying trustee) to pay and discharge, (1) the principal
of and interest on the Securities of such series on the respective
Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities on the day on which such payments are due and payable
in accordance with the terms of this Indenture and such
Securities; 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. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 4.02 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 4 hereof, which notice shall
be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(ii) In the case of an election under Section 11.02
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date first set forth hereinabove, 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 the Outstanding Securities of such series
will not recognize 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 be the case if such deposit, Defeasance and discharge
were not to occur.
<PAGE> 300
(iii) In the case of an election under Section 11.03
hereof, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding
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 be the
case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred
and be continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the TIA (assuming all Securities are in default within
the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(viii) 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 3.01
hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been
complied with.
(x) No event or condition shall exist that, pursuant to
the provisions of Article 16 hereof, would prevent the Company
from making payments of the principal of or interest on the
Securities of such series 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).
<PAGE> 301
Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended,
unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
Section 11.05 Deposited Money and U.S. Government Obligations to
in Trust; Other Miscellaneous Provisions
Subject to the provisions of Section 6.04(e) hereof, all
money and U.S. Government Obligations (or other property as may be provided
pursuant to Section 3.01 hereof) (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section 11.05 and Section 11.06 hereof, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 hereof in respect of the Outstanding Securities of any Defeasible
Series shall be held in trust and applied by the Trustee, in accordance
with the provisions of the Outstanding Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become
due thereon in respect of principal and interest, but such money so held in
trust 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 11.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge that by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article 11 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company any money
or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it with respect to Outstanding Securities of any
Defeasible Series that are in excess of the amount thereof that was used to
pay the Securities of such series upon Maturity.
Section 11.06 Reinstatement
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article 11 with respect to the Securities of
any series 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 the Securities of
such series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 11 with respect to Securities of such
series until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 11.05 hereof with respect to
Securities of such series in accordance with this Article 11; provided,
however, that if the Company makes any payment of principal of or interest
on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of Securities of such series to receive such payment from the money so held
in trust.
<PAGE> 302
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge of Indenture
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities (except as to any
surviving rights of registration of transfer or exchange of Securities of
such series herein expressly provided for) 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
(i) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 hereof, and (ii) Securities 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, as provided in Section 6.04 hereof) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (1) or (2) below, not theretofore delivered to
the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at
their Stated Maturity within one year, or
(3) 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 (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose an
amount in cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or redemption date, as the case may be;
(ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
<PAGE> 303
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, 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 9.07
hereof and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (i) of this Section 12.01, the obligations of the
Trustee under Sections 12.02 and 6.04(e) hereof shall survive.
Section 12.02 Application of Trust Money
Subject to the provisions of Section 6.04(e) hereof, all
money deposited with the Trustee pursuant to Section 12.01 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and interest 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 13
SUPPLEMENTAL INDENTURES
Section 13.01 Supplemental Indentures Without Consent of Holders
(a) The Company and the Trustee may amend this Indenture
or the Securities or waive any provision hereof without the consent of any
Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities in
addition to certificated Securities;
(iv) to make any change that does not adversely
affect the legal rights hereunder of any Holder of a
Security of any series;
(v) to add to the covenants of the Company for
the benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right
or power herein conferred upon the Company;
<PAGE> 304
(vi) to add any additional Events of Default for
the benefit of the Holders of all or any series of
Securities (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);
(vii) to change or eliminate any of the provisions
of this Indenture in respect of one or more series of
Securities; provided that any such addition, 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;
(viii) to establish the form or terms of Securities
of any series as permitted by Sections 2.01 and 3.01
hereof;
(ix) to evidence and provide for the acceptance
of appointment hereunder of 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 9.08
hereof;
(x) to supplement any of the provisions of the
Indenture to such extent as shall be necessary to
implement the provisions of Article 11 hereof or
discharge of any series of Securities pursuant to
Sections 12.01 and 12.02 hereof; provided that any such
action shall not adversely affect the interests of the
Holders of Securities of such series or any other series
in any material respect; or
(xi) to comply with the qualification of this
Indenture under the TIA.
<PAGE> 305
(b) Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 13.06 hereof, the Trustee will join with the Company in the
execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be contained therein. After an amendment or waiver
under this Section 13.01 becomes effective, the Company will mail to the
Holders of each Security affected thereby a notice describing the amendment
or waiver. Any failure of the Company to mail such notice, will not,
however, affect the validity of any such supplemental indenture.
Section 13.02 Supplemental Indentures With Consent of Holders
(a)Except as provided below in this Section 13.02, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent (including consents obtained in connection with a tender
offer or exchange offer for Securities) of the Holders of at least a
majority in principal amount of the Outstanding Securities of each series
affected by such amendment.
(b)Upon the request of the Company, accompanied by a
Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent
of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 13.06 hereof, the Trustee will join with the
Company in the execution of such supplemental indenture.
(c)It will not be necessary for the consent of the
Holders under this Section 13.02 to approve the particular form of any
proposed amendment or waiver, but it will be sufficient if such consent
approves the substance thereof.
(d)The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company with any provision of this Indenture
(including waivers obtained in connection with a tender offer or exchange
offer for Securities). However, without the consent of each Holder of an
Outstanding Security affected thereby, an amendment or waiver under this
Section 13.02 may not:
(i) change the Stated Maturity of the principal
of, or any installment of principal of or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable upon
the redemption thereof, or change the Place of Payment
where any Security or interest thereon is payable, or
change the coin or currency in which any Security 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), or
<PAGE> 306
(ii) reduce the percentage in principal amount of
the Outstanding Securities of any series, the consent of
whose Holders is required for any such amendment, or the
consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify any of the provisions of this Section
or Section 8.07, except to increase any such percentage
or to provide that certain other provisions of this
Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, or
(iv) modify any of the provisions of this
Indenture relating to the subordination of the Securities
in a manner adverse to the Holders.
(e) A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
(f) The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture (and the
obligation of the Company to obtain any such consent otherwise required
from such Holder) may be subject to the requirement that such Holder has
been the Holder of record of any Securities of any series with respect to
which such consent is required or sought as of a date identified by the
Trustee in a notice furnished to Holders in accordance with the terms of
this Indenture.
Section 13.03 Compliance With TIA
Every amendment to this Indenture or the Securities will
comply in form and substance with the TIA as then in effect.
<PAGE> 307
Section 13.04 Revocation and Effect of Consents
(a) Until an amendment (which includes any supplement) or
waiver becomes effective, a consent to it by a Holder of a Security of any
series is a continuing consent by the Holder and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to such Holder's Security or portion of a Security if the
Trustee receives written notice of revocation before the date the amendment
or waiver becomes effective. An amendment or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any amendment or waiver. If the Company elects to fix a record date for
such purpose, the record date will be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 10.02 hereof or (ii) such other date as the Company
will designate. If a record date is fixed, then notwithstanding the
provisions of Section 13.04(a) hereof, those Persons who were Holders at
such record date (or their duly designated proxies), and only those
Persons, will be entitled to consent to such amendment or waiver or to
revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent will be valid or effective
for more than 90 days unless consents from Holders of the principal amount
of Securities required hereunder for such amendment or waiver to be
effective have also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it
will bind every Holder of a Security of any series affected thereby, unless
it is of the type described in any of clauses (i) through (iv) of Section
13.02(d) hereof. Any amendment or waiver will bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
Section 13.05 Notation on or Exchange of Securities
The Trustee may place an appropriate notation about an
amendment or waiver on any Security of any series affected thereby
thereafter authenticated. The Company in exchange for all Securities of
such series may issue and the Trustee will authenticate new Securities of
such series that reflect the amendment or waiver.
Section 13.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amendment or supplemental
indenture authorized pursuant to this Article 13 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment or supplemental indenture, the Trustee will
be entitled to receive and, subject to Section 9.01 hereof, will be fully
<PAGE> 308
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
Section 13.07 Subordination Unimpaired
This Indenture may not be amended to alter the
subordination of any Outstanding Securities without the written consent of
each holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 14
MISCELLANEOUS
Section 14.01 TIA Controls
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
will control.
Section 14.02 Notices
(a) Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in person or
mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
If to the Company:
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77252-2863
Telecopier No.: (713) 877-2387
Confirmation No.: (713) 877-2311
Attention: President
If to the Trustee:
IBJ Whitehall Bank & Trust Company
One State Street
New York, New York 10004
Telecopier No.: (212) 858-2952
Confirmation No.: (212) 858-2815
Attention: Corporate Trust Agency & Administration
<PAGE> 309
(b) The Company or the Trustee, by notice to the other,
may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, if mailed; when
answered back, if telexed; when receipt acknowledged by the Trustee's
result report, if telecopied; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
(d) Any notice or communication to a Holder will be
mailed by first-class, postage-prepaid mail, return receipt requested, to
the Holder's address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Holder or any defect in it will not
affect its sufficiency with respect to other Holders.
(e) If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
(f) If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee and each Agent at the same
time.
Section 14.03 Communication by Holders With Other Holders
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Securities Register and anyone
else will have the protection of TIA Section 312(c).
Section 14.04 Action by Securityholders
Whenever in this Indenture it is provided that the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by (i) Holders in person or (ii) agent or proxy appointed in
writing, or by the record of the Holders in favor thereof, at any meeting
of Holders duly called and held in accordance with the provisions of
Article 15 hereof, or (iii) a combination of such instrument or instruments
of any such record of such meeting of Holders, but in each case only to the
extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
<PAGE> 310
Without limiting the generality of this Section 14.04, a
Holder, including a Depository that is a Holder of one or more Global
Securities, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent,
waiver or other action provided in this Indenture to be made, given or
taken by Holders and a Depository that is a Holder of one or more Global
Securities may provide its proxy or proxies to the beneficial owners of
interests in any such Global Securities through such Depository's standing
instructions and customary practices.
The Company, with advance approval by the Trustee, will
fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Security held by a Depository
entitled under the procedures of such Depository to make, give or take, by
a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
in this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Persons who are such beneficial owners at the close of
business on such record date or their duly appointed proxy or proxies will
be entitled to make, give or take such request, demand, authorization,
direction, notice, consent, waiver or other actions, whether or not such
Persons remain such beneficial owners after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other
action will be valid or effective if made, given or taken more than six
months after such record date.
Section 14.05 Proof of Execution of Instruments and Holding of Securities
Proof of the execution of any instrument by a Holder or
such Holder's agent or proxy and proof of the holding by any Person of any
of the Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any
such Person of any instrument may be proved by the
certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds
to be recorded in such jurisdiction that the Person
executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other
officer. Such certificate or affidavit shall also
constitute sufficient proof of the authority of the
Person executing any instrument in cases where Securities
are not held by Persons in their individual capacities.
(2) The fact and date of execution of any such
instrument may also be proved in any other manner which
the Trustee deems sufficient.
(3) The ownership of Securities shall be proved
by the Securities Register for such Security or by a
certificate of the Registrar.
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(4) The Trustee shall not be bound to recognize
any Person as a Securityholder unless such Holder's title
to any Security held by such Holder is proved in the
manner provided in this Section 14.05.
The Trustee may require such additional proof of any
matter referred to in this Section 14.05 as it shall deem necessary.
Section 14.06 Obligation to Disclose Beneficial Ownership of Securities
All Securities shall be held and owned upon the express
condition that, upon demand of any regulatory agency having jurisdiction
over the Company, and pursuant to law or regulation empowering such agency
to assert such demand, any Holder shall disclose to such agency the
identity of the beneficial owner of all Securities held by such Holder.
Section 14.07 Certificate and Opinion as to Conditions Precedent
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company will furnish
to the Trustee and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which will include
the statements set forth in Section 14.08 hereof) stating
that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
Section 14.08 Statements Required in Certificate or Opinion
(a) Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA Section 314(a)(4)) will
include:
(i) a statement that the Person making such
certificate or opinion has read such condition or covenant;
(ii) 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;
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(iii) a statement that, in the opinion of such
Person, such Person has made such examination or
investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such person, such condition or covenant has
been complied with.
(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows that the opinion with respect to the matters upon which his
certificate may be based as aforesaid is erroneous, or in the exercise of
reasonable care should know that the same is erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters, upon the
certificate, statement or opinion of or representations by an officer or
officers of the Company, or other Persons or firms deemed appropriate by
such counsel, unless such counsel has actual knowledge that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of
Counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representation by an accountant (who may be an
employee of the Company), or firm of accountants, unless such Officer or
counsel, as the case may be, has actual knowledge that the certificate or
opinion or representations with respect to the accounting matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous.
Section 14.09 Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
Section 14.10 No Recourse Against Others
A director, officer or employee of the Company, as such,
will have no liability for any obligations of the Company under the
Securities or this Indenture. Each Holder by accepting a Security waives
and releases all such liability.
Section 14.11 Governing Law
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without
regard to principles of conflicts of law.
<PAGE> 313
Section 14.12 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary thereof.
Any such indenture, loan or debt agreement may not be used to interpret
this Indenture. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof. Unless expressly
otherwise indicated herein, an action or transaction permitted by one
provision hereof must nonetheless comply with all other applicable
provisions hereof; and any action or transaction not permitted by any
provision of this Indenture will not be permitted regardless of whether any
other provision hereof might permit such action or transaction.
Section 14.13 Successors
All agreements of the Company in this Indenture and the
Securities will bind its successors. All agreements of the Trustee in this
Indenture will bind its successors.
Section 14.14 Severability
In case any provision in this Indenture or in the
Securities is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired thereby.
Section 14.15 Counterpart Originals
The parties may sign any number of copies of this
Indenture. Each signed copy will be an original, but all of them together
represent the same agreement.
Section 14.16 Trustee as Paying Agent and Registrar
The Company initially appoints the Trustee as Paying Agent
and Registrar.
Section 14.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
will in no way modify or restrict any of the terms or provisions hereof.
Section 14.18 Benefits of Indenture
Nothing in this Indenture or in the Securities, express
or implied, will give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Indebtedness and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
<PAGE> 314
Section 14.19 Acceptance of Trust
IBJ Whitehall Bank & Trust Company, the Trustee named
herein, hereby accepts the trusts in this Indenture declared and provided,
upon the terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 Purposes of Meetings
A meeting of Holders may be called at any time and from
time to time pursuant to the provisions of this Article 15 for any of the
following purposes:
(A) to give any notice to the Company or to the Trustee, or to
give any direction to the Trustee, or to waive any non-performance
hereunder, and its consequences, or to take any other action authorized to
be taken by Holders pursuant to any of the provisions of this Indenture;
(B) to remove the Trustee and appoint a successor Trustee pursuant
to the provisions of Section 9.08 hereof;
(C) to consent to the amendment of the provisions contained herein
and the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Article 13 hereof; or
(D) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of the
Outstanding Securities under any other provision of this Indenture or under
applicable law.
Section 15.02 Call of Meetings by Trustee
The Trustee may at any time call a meeting of Holders to
take any action specified in Section 15.01, to be held at such time and at
such place in the State of New York, as the Trustee shall determine. Notice
of each meeting of the Holders of Securities, 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 mailed by the Trustee to the Holders, not
less than 20 nor more than 60 days prior to the date fixed for the meeting,
at their last addresses as they shall appear on the Security Register.
<PAGE> 315
Section 15.03 Call of Meetings by Company or Securityholders
If at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 20 percent in aggregate principal
amount of the Outstanding Securities, shall have requested the Trustee to
call a meeting of Holders to take any action authorized in Section 15.01
hereof, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
notice of such meeting within 20 days after receipt of such request, then
the Company or the Holders in the amount above specified may determine the
time and the place in the State of New York for such meeting, and may call
such meeting by mailing notice thereof as provided in Section 15.02.
Section 15.04 Person Entitled to Vote at Meeting
To be entitled to vote at any meeting of Holders, a
Person shall be a Holder or be a Person appointed by an instrument in
writing as proxy by a Holder. The only Persons who shall be entitled to be
present or speak at any meeting of the Holders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of the Company and its counsel.
Section 15.05 Regulations for Meeting
Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders in regard to the appointment of proxies, the proof
of the holding of Securities, the appointment and duties of inspectors of
votes, the submission and examination of proxies and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 14.05 hereof and the appointment of any proxy shall be
proved in the manner specified in such Section 14.05 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
bank, banker, trust company or New York Stock Exchange, Inc.
member firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been
called by the Company or by the Holders as provided in Section 15.03, in
which case the Company or the Holders calling the meeting, as the case may
be, shall appoint a temporary chairman. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the
meeting and entitled to vote.
<PAGE> 316
At any meeting of Holders, the presence of Persons
holding or representing Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which
such meeting was called shall be necessary to constitute a quorum; but, if
less than a quorum be present, the Persons holding or representing a
majority in aggregate principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
ARTICLE 16
SUBORDINATION; SENIORITY
Section 16.01 Securities Subordinated to Senior Indebtedness
(a) The Company agrees, and each Holder of a Security of
any series by such Holder's acceptance thereof likewise agrees, that the
payment of the principal of, and interest on (including, without
limitation, interest accruing subsequent to the filing of a petition under
applicable Bankruptcy Law or the appointment of a Custodian), the
Securities of each series hereunder are subordinated and junior in right of
payment, to the extent and in the manner provided in this Article 16,
except as provided in Section 9.07, to the prior payment in full in cash or
Cash Equivalents of all Senior Indebtedness whether outstanding on the
Issue Date of the Securities of any series, or created, incurred, assumed
or guaranteed thereafter. The Securities of any series shall rank pari
passu with the Company's 4 7/8% Convertible Subordinated Debentures due
2005.
(b) All the provisions of this Indenture and the
Securities of any series will be subject to the provisions of this Article
16 so far as they may be applicable thereto, except that nothing in this
Article 16 will apply to claims for, or payments to, the Trustee under or
pursuant to Section 9.07 hereof.
Section 16.02 Company Not To Make Payments with Respect to Securities in
Certain Circumstances
(a) No payment will be made by the Company on account of
principal of or interest on the Securities of any series, nor may the
Company purchase or otherwise acquire such Securities for cash or property
(other than Capital Stock or other securities of the Company that are
subordinated to Senior Indebtedness to at least the same extent as the
Securities), if at the time of such payment or immediately after giving
effect thereto there will have occurred and be continuing (i) a default in
the payment of principal of (or premium, if any, on) or interest on any
Designated Senior Indebtedness continuing beyond the applicable period of
grace, if any, specified in the applicable instrument, lease, contract,
agreement or other document evidencing such Designated Senior Indebtedness,
or (ii) a default, other than a payment default as specified in clause (i)
of this Section 16.02(a), that permits the holders of Designated Senior
Indebtedness to accelerate the maturity thereof, and the Trustee shall have
<PAGE> 317
received notice thereof from the trustee or other representative of the
holders of Designated Senior Indebtedness, which notice shall request that
payment of principal of or interest on the Securities be prohibited
(provided, however, that in the case of Designated Senior Indebtedness
issued pursuant to an indenture, such notice may be validly given only by
the trustee under such indenture); provided that the foregoing will not
prohibit payments made pursuant to Articles 11 or 12 hereof from monies
deposited with the Trustee pursuant thereto prior to any such default,
judicial proceeding or notice.
(b) Notwithstanding Section 16.02(a) hereof, the Company
shall resume payments on the Securities of any series and may acquire such
Securities upon the earlier of:
(i) the date upon which the default or event of
default as specified in Section 16.02(a) hereof is cured
or waived or ceases to exist, or
(ii) in the case of an event of default as
specified in clause (ii) of Section 16.02(a), the
expiration of 179 days after such notice as set forth in
clause (ii) of Section 16.02(a) is received (each such
period under clause (ii) of this Section 16.02(b), a
"Payment Blockage Period").
Notwithstanding anything in this Section 16.02(b) to the contrary, (A) only
one such Payment Blockage Period may be commenced within any 365
consecutive day period and (B) in no event will a Payment Blockage Period
extend beyond 179 days from the date the payment on the Securities of any
series is due. For purposes of this Section 16.02, no default which, to the
knowledge of the trustee or other representative of Designated Senior
Indebtedness, existed or was continuing on the date of the commencement of
any Payment Blockage Period shall be, or be made, the basis for the
commencement of a second Payment Blockage Period by such trustee or
representative, whether or not within a period of 365 consecutive days,
unless such default shall have been cured or waived or shall have ceased to
exist, or the benefits of this Section 16.02(b) shall have been waived in
writing by such trustee or representative for a period of not less than 90
consecutive days.
(c) Upon any acceleration of the principal of the
Securities of any series or any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property
or securities, to creditors upon any dissolution or winding up or
liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
<PAGE> 318
proceedings, all amounts due or to become due upon all Senior Indebtedness
(including, without limitation, interest accruing subsequent to the filing
of a petition under applicable Bankruptcy Law or the appointment of a
Custodian) will first be paid in full in cash or Cash Equivalents, or
payment thereof provided for, before any payment is made on account of the
principal of or interest on the Securities (except payments made pursuant
to Articles 11 or 12 hereof from monies deposited with the Trustee pursuant
thereto prior to the happening of such dissolution, winding up, liquidation
or reorganization); and upon any such dissolution or winding up or
liquidation or reorganization, any payment by the Company, or distribution
of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee would be
entitled except for the provisions of this Article 16, will (except as
aforesaid) be paid by the Company or by any Custodian or other Person, or
by the Holders or the Trustee, making such payment or distribution directly
to the holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary
so that the holders of all Senior Indebtedness have been paid in full in
cash or Cash Equivalents, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders or to the Trustee, except
that Holders shall be entitled to receive securities that are subordinated
to Senior Indebtedness to at least the same extent as the Securities.
(d) If the Trustee or any Holder does not file a proper
claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for
or on behalf of the Trustee or such Holder.
(e) In the event that, notwithstanding the foregoing, any
payment by or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, is received by the Trustee or the Holders before all Senior
Indebtedness is paid in full in cash or Cash Equivalents, or provision is
made for such payment in cash or Cash Equivalents, such payment or
distribution will be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
<PAGE> 319
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay the
holders of all Senior Indebtedness in full in cash or Cash Equivalents,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, and, until so delivered, the same will
be held in trust by the Trustee or any Holder as the property of the
holders of Senior Indebtedness (but subject to the power of a court of
competent jurisdiction to make other equitable provision, which will have
been determined by such court to give effect to the rights conferred in
this Article 16 upon the Senior Indebtedness and the holders thereof with
respect to the Securities or the Holders or the Trustee, by a lawful plan
of reorganization or readjustment under applicable Bankruptcy Laws). The
Trustee will not have any obligation or duty to recover any such amounts so
distributed.
(f) The consolidation of the Company with, or the merger
of the Company into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article 7 hereof will not be deemed a
dissolution, winding up, liquidation or reorganization for the purposes of
this Section 16.02 if such other corporation will, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 7 hereof. Nothing in this Section 16.02 will apply to
claims of, or payments to, the Trustee under or pursuant to Section 9.07
hereof.
(g) The holders of Senior Indebtedness may, at any time
and from time to time, without the consent of, or notice to, the Holders or
the Trustee, without incurring responsibility to the Holders or the Trustee
and without impairing or releasing the rights of any holder of Senior
Indebtedness or in any way altering or affecting any of the provisions of
this Article 16: (i) change the amount, manner, place or terms of payment
or change or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding, (ii) sell, exchange, release or otherwise deal
with any property pledged, mortgaged or otherwise securing Senior
Indebtedness, (iii) release any Person liable in any manner for the
collection of Senior Indebtedness, and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
Section 16.03 Subrogation of Securities
(a) Subject to the payment in full of all Senior
Indebtedness at the time outstanding, the Holders will be subrogated
(without any duty on the part of the holders of Senior Indebtedness to
warrant, create, effectuate, preserve or protect each subrogation) to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company applicable to
the Senior Indebtedness until the principal of and interest on the
Securities of each series will be paid in full; and, for the purposes of
<PAGE> 320
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of any cash, property or securities to which the Holders or
the Trustee on their behalf would be entitled except for the provisions of
this Article 16, and no payments over pursuant to the provisions of this
Article 16, to the holders of Senior Indebtedness by Holders or the Trustee
on their behalf will, as between the Company, its creditors (other than
holders of Senior Indebtedness), and the Holders, be deemed to be a payment
by the Company to or on account of the Senior Indebtedness. It is
understood that the provisions of this Article 16 are and are intended
solely for the purpose of defining the relative rights of the Holders, on
the one hand, and the holders of Senior Indebtedness, on the other.
(b) Nothing contained in this Article 16 or elsewhere in
this Indenture or in the Securities of any series is intended to or will
impair, as among the Company, its creditors other than the holders of
Senior Indebtedness and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders the principal of and
interest on the Securities of each series as and when the same will become
due and payable in accordance with their terms, or is intended to or will
affect the relative rights of the Holders and creditors of the Company
other than the holders of Senior Indebtedness, nor will anything herein or
therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article 16 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the
Company referred to in this Article 16, the Trustee and the Holders will be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or certificate of the Custodian or
other Person making such payment or distribution, delivered to the Trustee
or to the Holders, for the purpose of ascertaining the holders of Senior
Indebtedness and other Indebtedness of the Company and the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 16.
Section 16.04 Authorization by Holders
Each Holder by such Holder's acceptance of a Security of
any series authorizes and directs the Trustee on such Holder's behalf to
take such action as may be necessary or appropriate to effectuate, as
between the Holder and the holders of Senior Indebtedness, the
subordination provided in this Article 16 and appoints the Trustee such
Holder's attorney-in-fact for any and all such purposes.
<PAGE> 321
Section 16.05 Notices to Trustee
(a) The Company will give prompt written notice in the
form of an Officers' Certificate to the Trustee of any fact known to the
Company which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities of any series pursuant to the
provisions of this Article 16. Notwithstanding the provisions of this
Article 16 or any other provision of this Indenture, the Trustee will not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this
Article 16, unless and until the Trustee will have received at its
Corporate Trust Office written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from a representative or trustee
therefor; provided, that in the case of Senior Indebtedness issued pursuant
to an indenture, such notice may be validly given only by the trustee under
such indenture; and before the receipt of any such written notice, the
Trustee will be entitled in all respects to assume that no such facts
exist; provided further that if the Trustee will not have received, at
least three Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security of
any series), with respect to such monies, the notice provided for in this
Section 16.05, then, anything herein contained to the contrary
notwithstanding, the Trustee will have the full power and authority to
receive such monies and to apply the same to the purpose for which they
were received and will not be affected by any notice to the contrary which
may be received by it within three Business Days prior to such date.
(b) The Trustee will be entitled to rely on the delivery
to it of a written notice by a Person representing himself or herself to be
a holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness or a trustee or a representative on behalf of any such holder.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant
to this Article 16, the Trustee may request such Person to provide evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness 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 16, 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> 322
(c) Notwithstanding anything to the contrary hereinbefore
set forth, nothing will prevent any payment by the (i) Company or the
Trustee to the Holders of monies in connection with a redemption of
Securities of any series if (A) notice of such redemption had been given
pursuant to Article 4 hereof prior to the receipt by the Company or the
Trustee, as applicable, of written notice as aforesaid, and (B) such notice
of redemption is given not earlier than sixty days before the redemption
date, or (ii) Trustee to the Holders of amounts deposited with it pursuant
to Articles 11 or 12 hereof.
(d) The Company agrees that if any default occurs with
respect to any Senior Indebtedness, which default permits the holders of
such Senior Indebtedness to accelerate the maturity thereof, the Company
will give prompt notice in writing of such happening to all known holders
of Senior Indebtedness and will certify to each such holder the name of the
Trustee and current notice address.
Section 16.06 Trustee's Relation to Senior Indebtedness
(a) The Trustee in its individual capacity will be
entitled to all the rights set forth in this Article 16 in respect of any
Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 9.03 or elsewhere in
this Indenture will deprive the Trustee of any of its rights as such
holder.
(b) With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 16, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness will be read into this Indenture against the Trustee. The
Trustee will not owe any fiduciary duty to the holders of Senior
Indebtedness but will have only such obligations to such holders as are
expressly set forth in this Article 16. Section 16.07 No Impairment of
Subordination
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided will 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 an act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
Section 16.08 Article 16 Not to Prevent Events of Default
No provision of this Article 16 will prevent the
occurrence of an Event of Default hereunder.
<PAGE> 323
Section 16.09 Paying Agents Other Than the Trustee
In any case at any time any Paying Agent other than the
Trustee has been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 16 will in such case (unless the
context will otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if such place of the Trustee; provided, however, that Sections 16.05 and
16.06 hereof will not apply to the Company or any Subsidiary if it acts as
Paying Agent.
<PAGE> 324
IN WITNESS WHEREOF, the undersigned have duly executed
this Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
----------------------------------
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:
----------------------------------
Name:
Title:
<PAGE> 325
EXHIBIT 5.1
[KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP]
(212) 836-8000
March 30, 1999
U.S. Home Corporation
10707 Clay Road
Houston, Texas 77041
Ladies and Gentlemen:
We have acted as counsel to U.S. Home Corporation, a
Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") to be
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), on the date hereof. The
Registration Statement related to the registration under the Act of debt
securities, which may be issued as senior, senior subordinated or
subordinated debt (the "Debt Securities") of the Company. The Debt
Securities are to be issued pursuant to one or more indentures (the
"Indentures"), each to be entered into between the Company and IBJ
Whitehall Bank & Trust Company, as trustee (the "Trustee"). The Debt
Securities are being registered for offer and sale from time to time
pursuant to Rule 415 under the Act.
In connection herewith, we have examined the Registration
Statement, the proposed forms of Indentures to be filed as exhibits to the
Registration Statement, together with such corporate records, certificates
and other documents, and such questions of law, as we have considered
necessary or appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that when
(i) the Registration Statement becomes effective under the Act, (ii) the
Board of Directors of the Company, or a duly authorized committee thereof
in accordance with the provisions of the Amended and Restated By-Laws of
the Company, has taken all necessary action to fix and approve the rank and
terms of the Debt Securities, including the form or forms of note to
evidence the Debt Securities, in a manner that does not violate any
applicable law, governmental or court-imposed order or restriction or
agreement or instrument then binding on the Company, or otherwise impair
the legal and binding nature of the obligations represented by the Debt
Securities, (iii) the proposed Indentures pursuant to which the Debt
Securities are to be issued shall have been qualified under the Trust
Indenture Act of 1939, as amended, and duly executed and delivered by duly
<PAGE> 326
authorized officers of the Company and the Trustee in the forms filed as
exhibits to the Registration Statement, with items shown in such exhibits
as subject to completion completed in a manner satisfactory to us, and (iv)
the Debt Securities are executed and authenticated in accordance with the
terms of the Indenture and delivered to the purchasers thereof upon payment
of the consideration therefor fixed by the Board of Directors of the
Company, or a duly authorized committee thereof in accordance the
provisions of the Amended and Restated By-Laws of the Company, the Debt
Securities will constitute the valid and binding obligations of the
Company, subject to applicable bankruptcy, insolvency, reorganization and
similar laws affecting creditors' rights generally and general principles
of equity (regardless whether such principles are considered in a
proceeding in equity or an action at law).
The foregoing opinion is limited to the laws of the State
of New York and the General Corporation Law of the State of Delaware. The
Debt Securities may be issued from time to time on a delayed or continuous
basis and the foregoing opinion is limited to the laws, including the Rules
and Regulations of the Commission, as in effect on the date hereof.
We consent to the filing of this opinion with the
Commission as an Exhibit to the Registration Statement and to the use of
our name under the caption "Legal Matters" in the Prospectus included
therein. Our opinion is rendered solely for your information in connection
with the foregoing, and may not be relied upon by any other person or for
any other purpose without our prior written consent. In giving this
opinion, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the Rules and
Regulations of the Commission.
Very truly yours,
/s/ Kaye, Scholer, Fierman, Hays & Handler, LLP
- -----------------------------------------------
Kaye, Scholer, Fierman, Hays & Handler, LLP
<PAGE> 327
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 3,
1999 included in U.S. Home Corporation's Annual Report on Form 10-K for the
year ended December 31, 1998 and to all references to our Firm included in
this Registration Statement.
/s/ Arthur Andersen LLP
------------------------
ARTHUR ANDERSEN LLP
Houston, Texas
March 29, 1999
<PAGE> 328
Exhibit 25.1
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)
IBJ WHITEHALL BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
U.S. HOME CORPORATION
(Exact names of obligor as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10707 Clay Road
Houston, Texas 77041
(Address of principal executive offices) (Zip code)
Senior Debt Securities
to be registered under U.S. Home Corporation=s
Form S-3 under the Securities Act of 1933
to be offered on a delay or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended
----------------------------------
(Title of indenture securities)
<PAGE> 329
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
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(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.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default
with respect to the securities under this
indenture. Explain the nature of any such
default.
None
<PAGE> 330
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates
of interest or participation in any other
securities, of the obligors are outstanding, or
is trustee for more than one outstanding series
of securities under the indenture, state whether
there has been a default under any such indenture
or series, identify the indenture or series
affected, and explain the nature of any such
default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this
statement of eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank & Trust
Company as amended to date. (See Exhibit 1A to
Form T-1, Securities and Exchange Commission File
No 22-18460 and Exhibit 25.1 to Form T-1,
Securities and Exchange Commission File No.
333-46849).
*2. A copy of the Certificate of Authority of the
trustee to Commence Business (Included in Exhibit
1 above).
*3. A copy of the Authorization of the trustee to
exercise corporate trust powers, as amended to
date (See Exhibit 4 to Form T-1, Securities and
Exchange Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee,
as amended to date (See Exhibit 25.1 to
Form T-1, Securities and Exchange Commission
File No. 333-46849).
5. Not Applicable
6. The consent of United States institutional
trustee required by Section 321(b) of the
Act.
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.
* The Exhibits thus designated are incorporated herein by reference
as exhibits hereto. Following the description of such Exhibits is
a reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
<PAGE> 331
NOTE
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor
and its directors or officers, the trustee has relied upon
information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to
Item 2, the answer to said Item is based on incomplete
information.
Item 2, may, however, be considered as correct unless amended by
an amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the
trustee as indicated in Item 13, the obligor is not in default
under any indenture under which the applicant is trustee.
<PAGE> 332
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the trustee, IBJ Whitehall Bank & Trust Company, a corporation
organized and existing under the laws of the State of New York, has duly
caused this statement of eligibility & qualification 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 19th day of March, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
------------------------
Luis Perez
Assistant Vice President
<PAGE> 333
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, as amended, in connection with the issuance by
US Home Corporation, of its Senior Debt Securities, we hereby consent that
reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
--------------------------
Luis Perez
Assistant Vice President
Dated: March 19, 1999
<PAGE> 334
Exhibit 25.2
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)
IBJ WHITEHALL BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
U.S. HOME CORPORATION
(Exact names of obligor as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10707 Clay Road
Houston, Texas 77041
(Address of principal executive offices) (Zip code)
Senior Subordinated Debt Securities
to be registered under U.S. Home Corporation's
Form S-3 under the Securities Act of 1933
to be offered on a delay or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended
--------------------------------
(Title of indenture securities)
<PAGE> 335
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
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(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.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default
with respect to the securities under this
indenture. Explain the nature of any such
default.
None
<PAGE> 336
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligors are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether
there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the
nature of any such default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this
statement of eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank &
Trust Company as amended to date. (See Exhibit 1A to
Form T-1, Securities and Exchange Commission File No
22-18460 and Exhibit 25.1 to Form T-1, Securities and
Exchange Commission File No. 333-46849).
*2. A copy of the Certificate of Authority of the
trustee to Commence Business (Included in Exhibit 1
above).
*3. A copy of the Authorization of the trustee to
exercise corporate trust powers, as amended to date
(See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee,
as amended to date (See Exhibit 25.1 to Form T-1,
Securities and Exchange Commission File No. 333-46849).
5. Not Applicable
6. The consent of United States institutional trustee
required by Section 321(b) of the Act.
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.
* The Exhibits thus designated are incorporated herein by reference
as exhibits hereto. Following the description of such Exhibits is
a reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
<PAGE> 337
NOTE
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor
and its directors or officers, the trustee has relied upon
information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to
Item 2, the answer to said Item is based on incomplete
information.
Item 2, may, however, be considered as correct unless amended by
an amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the
trustee as indicated in Item 13, the obligor is not in default
under any indenture under which the applicant is trustee.
<PAGE> 338
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the trustee, IBJ Whitehall Bank & Trust Company, a corporation
organized and existing under the laws of the State of New York, has duly
caused this statement of eligibility & qualification 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 19th day of March, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
-------------------------
Luis Perez
Assistant Vice President
<PAGE> 339
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, as amended, in connection with the issuance by
US Home Corporation, of its Senior Subordinated Debt Securities, we hereby
consent that reports of examinations by Federal, State, Territorial, or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
---------------------------
Luis Perez
Assistant Vice President
Dated: March 19, 1999
<PAGE> 340
Exhibit 25.3
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)
IBJ WHITEHALL BANK & TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-6022258
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a U.S. national bank) identification No.)
One State Street, New York, New York 10004
(Address of principal executive offices) (Zip code)
LUIS PEREZ, ASSISTANT VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY
One State Street
New York, New York 10004
(212) 858-2000
(Name, address and telephone number of agent for service)
U.S. HOME CORPORATION
(Exact names of obligor as specified in its charter)
Delaware 21-0718930
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10707 Clay Road
Houston, Texas 77041
(Address of principal executive offices) (Zip code)
Subordinated Debt Securities
to be registered under U.S. Home Corporation's
Form S-3 under the Securities Act of 1933
to be offered on a delay or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, as amended
-----------------------------------
(Title of indenture securities)
<PAGE> 341
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
Two Rector Street
New York, New York
Federal Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of New York
Second District,
33 Liberty Street
New York, New York
(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.
The obligor is not an affiliate of the trustee.
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default
with respect to the securities under this
indenture. Explain the nature of any such
default.
None
<PAGE> 342
(b) If the trustee is a trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities,
of the obligors are outstanding, or is trustee for
more than one outstanding series of securities under
the indenture, state whether there has been a default
under any such indenture or series, identify the
indenture or series affected, and explain the nature
of any such default.
None
Item 16. List of exhibits.
List below all exhibits filed as part of this
statement of eligibility.
*1. A copy of the Charter of IBJ Whitehall Bank &
Trust Company as amended to date. (See Exhibit 1A
to Form T-1, Securities and Exchange Commission File
No 22-18460 and Exhibit 25.1 to Form T-1, Securities
and Exchange Commission File No. 333-46849).
*2. A copy of the Certificate of Authority of the
trustee to Commence Business (Included in Exhibit
1 above).
*3. A copy of the Authorization of the trustee to
exercise corporate trust powers, as amended to date
(See Exhibit 4 to Form T-1, Securities and Exchange
Commission File No. 22-19146).
*4. A copy of the existing By-Laws of the trustee, as
amended to date (See Exhibit 25.1 to Form T-1,
Securities and Exchange Commission File No.
333-46849).
5. Not Applicable
6. The consent of United States institutional
trustee required by Section 321(b) of the Act.
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.
* The Exhibits thus designated are incorporated herein by reference
as exhibits hereto. Following the description of such Exhibits is
a reference to the copy of the Exhibit heretofore filed with the
Securities and Exchange Commission, to which there have been no
amendments or changes.
<PAGE> 343
NOTE
In answering any item in this Statement of Eligibility which
relates to matters peculiarly within the knowledge of the obligor
and its directors or officers, the trustee has relied upon
information furnished to it by the obligor.
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base responsive answers to
Item 2, the answer to said Item is based on incomplete
information.
Item 2, may, however, be considered as correct unless amended by
an amendment to this Form T-1.
Pursuant to General Instruction B, the trustee has responded to
Items 1, 2 and 16 of this form since to the best knowledge of the
trustee as indicated in Item 13, the obligor is not in default
under any indenture under which the applicant is trustee.
<PAGE> 344
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act
of 1939, the trustee, IBJ Whitehall Bank & Trust Company, a corporation
organized and existing under the laws of the State of New York, has duly
caused this statement of eligibility & qualification 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 19th day of March, 1999.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
--------------------------
Luis Perez
Assistant Vice President
<PAGE> 345
Exhibit 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, as amended, in connection with the issuance by
US Home Corporation, of its Subordinated Debt Securities, we hereby consent
that reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities and
Exchange Commission upon request therefor.
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/Luis Perez
----------------------------
Luis Perez
Assistant Vice President
Dated: March 19, 1999
