<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 6, 1998
REGISTRATION NO. 333-44369
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
EMCOR GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 11-2125338
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
101 MERRITT SEVEN CORPORATE PARK
NORWALK, CONNECTICUT 06851
(203) 849-7800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
SHELDON I. CAMMAKER, ESQ.
GENERAL COUNSEL
EMCOR GROUP, INC.
101 MERRITT SEVEN CORPORATE PARK
NORWALK, CONNECTICUT 06851
(203) 849-7800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
Copies to:
VINCENT PAGANO, JR., ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3954
(212) 455-2000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C> <C>
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE
<S> <C> <C> <C>
Debt Securities, Common Stock, Preferred
Stock, Warrants (1)....................... $200,000,000 (2) 100% (3) $200,000,000(2)(3)
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED REGISTRATION FEE
<S> <C>
Debt Securities, Common Stock, Preferred
Stock, Warrants (1)....................... $14,750 (4)
</TABLE>
(1) The Debt Securities registered hereby include such additional amount as may
be necessary so that, if Debt Securities are issued with an original issue
discount, the maximum aggregate initial offering prices of all Debt
Securities will not exceed $200,000,000. The Common Stock registered hereby
includes Preferred Stock Purchase Rights (the 'Rights'). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the Common
Stock. Also being registered hereunder are an indeterminate number of shares
of Common Stock as shall be issuable upon conversion or redemption of
Preferred Stock or Debt Securities registered hereby.
(2) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$200,000,000. Any securities registered hereunder may be sold separately or
as units with other securities registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) An Additional filing fee of $44,250 was already paid on Jan. 16, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 6, 1998
PROSPECTUS
EMCOR GROUP, INC.
PREFERRED STOCK
COMMON STOCK
WARRANTS TO PURCHASE PREFERRED STOCK
WARRANTS TO PURCHASE COMMON STOCK
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
------------------------
EMCOR Group, Inc. ('EMCOR' or the 'Company') may offer and sell from time
to time, in one or more series, (i) its preferred stock, par value $.10 per
share (the 'Preferred Stock'), (ii) its common stock, par value $.01 per share
(the 'Common Stock'), (iii) unsecured debt securities consisting of notes,
debentures or other evidences of indebtedness (the 'Debt Securities') which may
be senior ('Senior Debt Securities'), senior subordinated ('Senior Subordinated
Debt Securities') or subordinated ('Subordinated Debt Securities') and (iv)
warrants to purchase Preferred Stock, Common Stock or Debt Securities (the
'Warrants'), or any combination of the foregoing.
The Preferred Stock, Common Stock, Debt Securities and Warrants are
collectively referred to as the 'Securities.' The Securities may be offered at
an aggregate initial offering price not to exceed $200,000,000 at prices and on
terms to be determined at or prior to the time of sale.
Specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in an accompanying Prospectus Supplement
('Prospectus Supplement'), together with the terms of the offering of the
Securities and the initial price and the net proceeds to the Company from the
sale thereof. The Prospectus Supplement will set forth with regard to the
particular Securities, without limitation, the following: (i) in the case of
Debt Securities, the specific designation, aggregate principal amount, ranking
as senior debt, senior subordinated debt or subordinated debt, maturity, rate or
rates (or method of determining the same) and time or times for the payment of
interest, if any, any terms for optional or mandatory redemption or repurchase
or sinking fund provisions, and any conversion or exchange rights, (ii) in the
case of Preferred Stock, the designation, number of shares, liquidation
preference per share, initial public offering price, dividend rate (or method of
calculation thereof), dates on which dividends shall be payable and dates from
which dividends shall accrue, any redemption or sinking fund provisions, and any
conversion or exchange rights, (iii) in the case of Common Stock, the number of
shares of Common Stock and the terms of the offering and sale thereof and (iv)
in the case of Warrants, the number and terms thereof, the designation and the
number of securities issuable upon their exercise, the exercise price, the terms
of the offering and sale thereof and, where applicable, the duration and
detachability thereof.
The Securities may be sold directly by EMCOR to investors, through agents
designated from time to time or to or through underwriters or dealers. See 'Plan
of Distribution.' If any agents of EMCOR or any underwriters are involved in the
sale of any Securities in respect of which this Prospectus is being delivered,
the names of such agents or underwriters and any applicable commissions or
discounts will be set forth in the Prospectus Supplement.
FOR A DISCUSSION OF CERTAIN RISK FACTORS THAT SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS, SEE 'RISK FACTORS' BEGINNING ON PAGE 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
AVAILABLE INFORMATION
As permitted by the rules and regulations of the Securities and Exchange
Commission (the 'Commission'), this Prospectus does not contain all the
information set forth in the Registration Statement on Form S-3, as amended (the
'Registration Statement'), of which this Prospectus is a part. Statements
contained in this Prospectus as to the contents of any contract or other
document referred to herein are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, or as previously filed with the
Commission and incorporated by reference, each such statement being qualified in
all respects by such reference. A copy of the Registration Statement may be
inspected by anyone without charge at the Commission's principal office at 450
Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part
thereof may be obtained from the Commission upon payment of certain fees
prescribed by the Commission.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at its regional offices located at 500 West Madison Street, 14th Floor, Chicago,
Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048.
Copies of such material also can be obtained by mail from the Public Reference
Section of the Commission, at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, at the prescribed rates. The Commission also
maintains a website that contains reports, proxy and information statements and
other information. The website address is: http://www.sec.gov. The Company's
Common Stock is listed on The Nasdaq National Market, and such reports, proxy
statements and other information also can be inspected at the offices of Nasdaq
Operations, 1735 K Street, N.W., Washington, D.C. 20006.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31, 1996;
(b) Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, June 30 and September 30, 1997;
(c) Current report on Form 8-K filed March 5, 1997;
(d) The description of the Common Stock contained in the Company's
Registration Statement on Form 10/A filed on August 11, 1995; and
(e) The description of the Preferred Stock contained in the Company's
Registration Statement on Form 8-A filed on March 5, 1997.
All reports and other documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering made by this Prospectus
shall be deemed to be incorporated by reference herein. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company undertakes to provide without charge to each person to whom a
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the information incorporated by reference in this Prospectus,
other than exhibits to such information (unless such exhibits are specifically
incorporated by reference into the information that this Prospectus
incorporates). Requests for such copies should be directed to the General
Counsel, EMCOR Group, Inc., 101 Merritt Seven Corporate Park, Norwalk,
Connecticut 06851 (telephone: (203) 849-7800).
2
<PAGE>
THE COMPANY
The Company is a multinational corporation engaged, through its
subsidiaries, in mechanical and electrical construction and facilities services.
EMCOR specializes in the design, integration, installation, start-up, testing,
operation and maintenance of (i) distribution systems for electrical power
(including power cables, conduits, distribution panels, transformers,
generators, uninterruptible power supply systems and related switch gear and
control); (ii) lighting systems, including fixtures and controls; (iii)
low-voltage systems, including fire alarm, security, communications and process
control systems; (iv) heating, ventilation, air conditioning, refrigeration and
clean-room process ventilation systems; and (v) plumbing, process and high
purity piping systems. The Company provides mechanical and electrical
construction services directly to end-users (including corporations,
municipalities and other governmental entities, owners/developers, and tenants
of buildings) and, indirectly, by acting as a subcontractor to construction
managers, general contractors and other subcontractors. Mechanical and
electrical construction services principally fall into three categories: large
installation projects, with contracts generally in the multi-million dollar
range; smaller system installation projects involving fit-out, renovation and
retrofit work; and facilities services. In addition, certain EMCOR subsidiaries
provide services required to maintain the physical environment and supporting
systems of customer facilities necessary to conduct their business. These
services are frequently referred to as facilities services and range from
operation and maintenance of mechanical and electrical systems installed by the
Company and others to operation and maintenance of building systems, cleaning
and housekeeping, reprographics, catering and security, as well as related
facility planning and consulting services. These facilities services are often
associated with outsourcing and privatization programs whereby customers in both
the private and public sectors seek to contract out their non-core activities,
i.e. those supporting but not directly involved in the customer's business that
the customer has previously performed itself. The facilities services are
provided on an individual basis and in combinations on a task-order or on-call
basis and under multi-year contracts. Mechanical and electrical construction and
facilities services are provided to a broad range of commercial, industrial and
institutional customers through offices located in major markets throughout the
U.S., Canada, the U.K., the Middle East and Hong Kong.
3
<PAGE>
RISK FACTORS
In addition to the other information set forth in or incorporated by
reference in this Prospectus and any Prospectus Supplement, the following
factors should be considered carefully in evaluating an investment in the
Securities.
This Prospectus includes certain statements that may be deemed to be
'forward-looking statements' within the meaning of Section 27A of the Securities
Act of 1933, as amended (the 'Securities Act'), and Section 21E of the
Securities Exchange Act of 1934, as amended (the 'Exchange Act'). All
statements, other than statements of historical facts, included in this
Prospectus that address activities, events or developments that the Company
expects, believes or anticipates will or may occur in the future, including such
matters as future capital expenditures, dividends and acquisitions, the use of
proceeds from any offering of Securities pursuant to this Prospectus, expansion
and other development trends of the Company's industry, business strategies,
expansion and growth of the Company's operations and other such matters, are
forward-looking statements. These statements are based on certain assumptions
and analyses made by the Company in light of its experience and its perception
of historical trends, current conditions, expected future developments and other
factors it believes are appropriate. Such statements are subject to a number of
assumptions, risks and uncertainties, including the risk factors discussed
below, general economic and business conditions, the business opportunities that
may be presented to and pursued by the Company, changes in laws or regulations
and other factors, many of which are beyond the control of the Company.
Prospective investors are cautioned that any such statements are not guarantees
of future performance and that actual results or developments may differ
materially from those anticipated in the forward-looking statements.
COMPETITION
The business in which the Company engages is competitive. Most of the
Company's revenues are derived from jobs which are awarded on the basis of
various forms of competitive bids; however, an invitation to bid is often
conditioned upon prior experience, technical capability and financial strength.
The Company competes with national, regional and local companies. The Company
believes that, at present, it is the largest provider of mechanical and
electrical construction services in the U.S. and Canada and one of the largest
in the U.K. There can be no assurance, however, that the Company will compete
successfully with its existing competitors or with any new competitors. The
highly competitive nature of the mechanical and electrical construction business
forces the Company to charge competitive market rates for its services which
results in narrow operating margins. Any degradation in operating margins could
have a material impact on the financial condition of the Company.
RISKS OF FIXED PRICE CONTRACTS; BID AND PERFORMANCE BONDS
Approximately 75% of the Company's U.S. mechanical and electrical
construction contracts are fixed price contracts. The terms of these contracts
require the Company to guarantee the price of its services and assume the risk
that the costs associated with its performance will be greater than the Company
anticipated. The Company's profitability in this market is therefore dependent
on its ability accurately to predict the costs associated with its services.
These costs may be affected by a variety of factors, some of which may be beyond
the Company's control. If the Company is unable accurately to predict the costs
of fixed price contracts, certain projects could have lower margins than
anticipated, which could have a material adverse effect on the Company's results
of operations or financial condition.
Institutional and public works projects are frequently long-term, complex
projects requiring significant technical and management skills and financial
strength to, among other things, obtain bid and performance bonds, which are
often a condition to bidding for, and awarding of, contracts for such projects.
There can be no assurance that the Company will be able to obtain bid and
performance bonds in the future and the inability to procure such bonds could
have a material adverse effect on the Company's business, operating results and
financial condition.
NET OPERATING LOSS CARRYFORWARDS
The Company and its subsidiaries have federal net operating loss ('NOL')
carryforwards of approximately $180 million which are available to reduce future
federal income taxes. It is possible that certain changes in the Company's
ownership, including prior ownership changes, certain offerings that may be made
pursuant to this Prospectus and future issuances of securities of the
4
<PAGE>
Company, could result in the Company's having a change of ownership under
Section 382 of the Internal Revenue Code. Generally, Section 382 limits the
amount of NOL carryforwards that can be utilized in any year to offset taxable
income following a change in control of a corporation. Were such a change of
control to occur, the Company would be limited in how much of its NOLs it could
utilize annually to an amount equal to the value of the Company immediately
prior to the change multiplied by the long-term tax exempt rate in effect for
the month during which such change of control occurs. This limitation could
delay use of the NOLs and might preclude their full utilization. The NOLs
expire, if unused, between 2007 and 2010. In addition, the NOL carryforwards are
subject to adjustment upon review by the Internal Revenue Service. See Note H of
Notes to Consolidated Financial Statements included in the Company's Annual
Report on Form 10-K incorporated by reference herein.
CYCLICALITY AND SEASONALITY
The provision of mechanical and electrical construction services is
cyclical and influenced by various economic factors including interest rates and
general fluctuations of the business cycle. Although the Company provides these
services to a broad range of commercial, industrial and institutional customers
around the world, cyclicality of the construction industry and instability of
general economic conditions could have an adverse effect on the Company's
revenues and profitability. The Company is seeking to expand its facilities
services business in North America which would be less susceptible to downswings
in the economy than the more cyclical construction market. In addition, the
mechanical and electrical construction business is subject to seasonal
variations. Specifically, the demand for construction services is lower during
winter months as a result of inclement weather conditions. Accordingly, the
Company's revenues and operating results are generally lower in the first and
second quarters.
VARIABILITY OF QUARTERLY OPERATING RESULTS
Variations in the Company's revenues and operating results occur from
quarter to quarter as a result of a number of factors, including installation
projects commenced and completed during a quarter, the number of business days
in a quarter and the size and scope of projects. Because a significant portion
of the Company's expenses are fixed, a variation in the number of projects,
progress on projects, or the timing of the initiation or completion of projects
can cause significant variations in operating results from quarter to quarter.
EXPANSION OF FACILITIES SERVICES BUSINESS
Part of the Company's strategy is to expand its facilities services
business. There can be no assurance that the Company will be able to identify
attractive opportunities in this market, or obtain additional significant
contracts for its services. If the North American market for facilities services
fails to develop or develops more slowly than the Company anticipates, the
Company's facilities services operations could become financially burdensome to
maintain, which could adversely affect the Company's business, financial
condition and results of operations.
The Company also intends to pursue the acquisition of additional facilities
services businesses as part of its growth strategy. However, competition for
acquisition candidates is increasing and, therefore, fewer acquisition
opportunities may be available. In addition, prices paid for acquisitions are
increasing in certain markets. There can be no assurance that the Company will
be able to identify and acquire additional facilities services businesses at
attractive prices, profitably manage additional businesses or successfully
integrate any acquired businesses into the Company without substantial costs,
delays, or other operational or financial problems.
ABSENCE OF DIVIDENDS
The Company does not anticipate paying cash dividends on its Common Stock
in the foreseeable future. The Company's working capital credit facility limits
the payment of dividends on its Common Stock.
CERTAIN LITIGATION PROCEEDINGS
The Company is currently defending a lawsuit that was commenced against the
Dynalectric Company ('Dynalectric'), a subsidiary of the Company, in Superior
Court of New Jersey, Bergen County, arising out of Dynalectric's participation
in a joint venture with the plaintiff, Computran. In the action, which was
instituted in
5
<PAGE>
1988, Computran, a participant in, and a subcontractor to, the joint venture,
alleges that Dynalectric wrongfully terminated its subcontract, fraudulently
diverted funds due to it, misappropriated its trade secrets and proprietary
information, fraudulently induced it to enter into the joint venture and
conspired with other defendants to commit certain acts in violation of the New
Jersey Racketeering Influence and Corrupt Organization Act. Dynalectric believes
that Computran's claims are without merit and intends to defend this matter
vigorously. Dynalectric has filed counterclaims against Computran. The Superior
Court of New Jersey has recently ordered that the matters in dispute with
Computran be resolved by binding arbitration in accordance with an original
agreement between the parties.
In February 1995, as part of an investigation by the New York County
District Attorney's office into the business affairs of Herbert Construction
Company ('Herbert'), a general contractor that does business with the Company's
subsidiary, Forest Electric Corporation ('Forest'), a search warrant was
executed at Forest's executive offices. At that time, the Company was informed
that Forest and certain of its officers are targets of the continuing
investigation. Forest performs electrical contracting services primarily in the
New York City commercial market and is one of the Company's largest
subsidiaries. Neither the Company nor Forest has been advised of the precise
nature of any suspected violation of law by Forest or its officers. On April 7,
1997, Ted Kohl, a principal of Herbert, pled guilty to one count of money
laundering, one count of offering a false instrument for filing and one count of
filing a false New York State Resident Income Tax Return. DPL Interiors, Inc., a
Company allegedly owned by Mr. Kohl, also pled guilty to one count of failing to
file New York City General Income Tax Returns. Mr. Kohl and DPL Interiors, Inc.
have not yet been sentenced.
Substantial settlements or damage judgments against a subsidiary of the
Company arising out of either of these matters could have a material adverse
effect on the Company's business, operating results and financial condition.
CERTAIN ANTITAKEOVER EFFECTS
The Company's Amended and Restated Certificate of Incorporation, Amended
and Restated By-Laws and the Delaware General Corporation Law include provisions
that may be deemed to have antitakeover effects and may delay, defer or prevent
a takeover attempt that stockholders might consider to be in their best
interests. The Company's Restated Certificate of Incorporation provides that
stockholders may not act by written consent. The Company's Amended and Restated
By-Laws provide that annual and special stockholders meetings may be called only
by an officer of the Company instructed by the Board of Directors to call such
meetings. In addition, the Company's Board of Directors is authorized to issue
'blank-check' preferred stock which could render more difficult or discourage an
attempt to obtain control of the Company by means of a tender offer, merger,
proxy contest or otherwise and could have an adverse effect on the market price
of the Common Stock. The Company has no present plan to issue any shares of
Preferred Stock. In addition, the Company has adopted a stockholder rights plan
which is designed to discourage hostile takeover offers for the Company by
threatening significant dilution of the bidder's interest in the Company upon
the occurrence of certain triggering events. See 'Description of Capital Stock.'
DEPENDENCE ON SENIOR MANAGEMENT
The Company's business is managed, and its business strategies formulated,
by a relatively small number of key executive officers and other personnel. The
loss of these key management persons could have a material adverse effect on the
Company.
YEAR 2000 ISSUE; COMPUTER SYSTEM UPGRADE
The Company is exploring whether and to what extent its computer operating
systems will be disrupted upon the turn of the century as a result of the
widely-known dating system flaw inherent in most operating systems (the 'Year
2000 Issue'). While the Company believes that new MIS software being installed
both alongside and as part of upgrades to its existing computer systems will
address the Year 2000 Issue, there can be no assurance that the new MIS software
will be installed in sufficient time to remedy the Year 2000 Issue, that the
Company's computer operating systems will not be disrupted upon the turn of the
century or that any such disruption, whether caused by the Company's systems or
those of any of its suppliers or customers, will not have a material adverse
effect on the Company's financial condition or results of operations. In
addition, there can be
6
<PAGE>
no assurance that the Company will not experience significant cost overruns or
delays in connection with the upgrade of its existing computer system.
PRICE VOLATILITY OF COMMON STOCK
The trading price of the Common Stock could be subject to wide fluctuations
in response to quarter-to-quarter variations in operating results, changes in
earnings estimates by analysts, announcements of acquisitions or new strategies
by the Company or its competitors, general conditions in the economy or in the
markets in which the Company operates or other developments affecting the
Company, its clients or its competitors, some of which may be unrelated to the
Company's performance. These conditions could materially adversely affect the
market price of the Common Stock.
USE OF PROCEEDS
Unless otherwise provided in the applicable Prospectus Supplement, the net
proceeds from the sale of the particular Securities offered by this Prospectus
and each Prospectus Supplement (the 'Offered Securities') will be used to repay
certain indebtedness, for general corporate purposes and for possible
acquisitions.
RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
For purposes of computing the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends, earnings consist of
earnings (loss) from continuing operations before income taxes, minority
interest, extraordinary items and cumulative effect of accounting changes, plus
fixed charges (interest charges and preferred share dividend requirements of
subsidiaries, adjusted to a pretax basis), less interest capitalized, less
preferred share dividend requirements of subsidiaries adjusted to a pretax basis
and less undistributed earnings of affiliates whose debt is not guaranteed by
the Company.
The following table sets forth the ratios of earnings to fixed charges and
earnings to combined fixed charges and preferred dividends for the Company for
the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
-------------- -------------------------------------------------
1997 1996 1996 1995 1994(A) 1993 1992
----- ----- ----- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................. 1.63x 1.84x 1.89x (b) (c) (d) (e)
Ratio of earnings to combined fixed charges and
preferred dividends.............................. 1.63x 1.84x 1.89x (b) (c) (d) (e)
</TABLE>
- ------------------
(a) As of December 31, 1994, in accordance with the American Institute of
Certified Public Accountants Statement of Position 90-7, 'Financial
Reporting by Entities in Reorganization under the Bankruptcy Code' ('SOP
90-7'), the Company adopted Fresh-Start Accounting. As a result of the
implementation of Fresh-Start Accounting, the consolidated financial
statements of the Company for periods subsequent to consummation of the
Company's reorganization pursuant to its Third Amended Joint Plan of
Reorganization (the 'Plan of Reorganization'), which became effective in
December 1994, are not comparable to the Company's consolidated financial
statements for prior periods. Accordingly, a black line has been used to
separate the Computation of Earnings to Fixed Charges of the Company after
the consummation of the Plan of Reorganization from those of the Company
prior to the consummation of the Plan of Reorganization.
(b) No ratio is presented for 1995 as the earnings for that year were $9.5
million less than the fixed charges.
(c) No ratio is presented for 1994 as the earnings for that year were $119.1
million less than the fixed charges.
(d) No ratio is presented for 1993 as the earnings for that year were $114.7
million less than the fixed charges.
(e) No ratio is presented for 1992 as the earnings for that year were $355.9
million less than the fixed charges.
7
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured senior, senior subordinated or
subordinated debt of EMCOR and will be issued, in the case of Senior Debt
Securities, under a Senior Indenture (the 'Senior Debt Indenture') between EMCOR
and State Street Bank and Trust Company ("State Street"), as Trustee, in the
case of Senior Subordinated Debt Securities, under a Senior Subordinated
Indenture (the 'Senior Subordinated Debt Indenture') between EMCOR and State
Street, as Trustee, and in the case of Subordinated Debt Securities, under a
Subordinated Indenture (the 'Subordinated Debt Indenture') between EMCOR and
State Street, as Trustee. The Senior Debt Indenture, the Senior Subordinated
Debt Indenture and the Subordinated Debt Indenture are sometimes hereinafter
referred to individually as an 'Indenture' and collectively as the 'Indentures.'
None of the Indentures limits the amount of Debt Securities that may be issued
thereunder, and the Indentures provide that the Debt Securities may be issued
from time to time in one or more series. The Indentures permit the appointment
of a different trustee for each series of Debt Securities. As used herein, the
term 'Trustee' means State Street. If there is at any time more than one trustee
under any Indenture, the term 'Trustee' as used in this Prospectus will mean
each such trustee and will apply to each such trustee only with respect to those
series of Debt Securities with respect to which it is serving as trustee. The
Indentures are filed as exhibits to the Registration Statement of which this
Prospectus is a part. The following summaries of certain provisions of the
Indentures and the Debt Securities do not purport to be complete and, while
EMCOR believes the descriptions of the material provisions of the Indentures and
Debt Securities contained in this Prospectus are accurate summaries of such
material provisions, such summaries are subject to the detailed provisions of
the applicable Indenture to which reference is hereby made for a full
description of such provisions, including the definition of certain terms used
herein. Section references in parentheses below are to sections in each
Indenture unless otherwise indicated. Wherever particular sections or defined
terms of the applicable Indenture are referred to, such sections or defined
terms are incorporated herein by reference as part of the statement made, and
the statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for provisions relating to subordination.
PROVISIONS APPLICABLE TO SENIOR, SENIOR SUBORDINATED AND SUBORDINATED DEBT
SECURITIES
General. Debt Securities will be unsecured senior, senior subordinated or
subordinated obligations of EMCOR. Except to the extent set forth in the
applicable Prospectus Supplement, none of the Indentures limits the payment of
dividends by or the acquisition of stock of EMCOR. Except to the extent set
forth in any Prospectus Supplement, the Indentures do not, and the Debt
Securities will not, contain any covenants or other provisions that are intended
to afford holders of the Debt Securities special protection in the event of
either a change of control of EMCOR or a highly leveraged transaction by EMCOR.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Debt Securities being offered (the 'Offered Debt
Securities') (to the extent such terms are applicable to such Offered Debt
Securities): (i) the title of the Offered Debt Securities; (ii) classification
as Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated
Debt Securities, aggregate principal amount, purchase price and denomination;
(iii) the date or dates on which the Offered Debt Securities will mature; (iv)
the method by which amounts payable in respect of principal, premium, if any, or
interest, if any, on or upon the redemption of such Offered Debt Securities may
be calculated; (v) the interest rate or rates (or the method by which such will
be determined), and the date or dates from which such interest, if any, will
accrue; (vi) the date or dates on which such interest, if any, will be payable;
(vii) the place or places where and the manner in which the principal of,
premium, if any, and interest, if any, on the Offered Debt Securities will be
payable and the place or places where the Offered Debt Securities may be
presented for transfer; (viii) the right, if any, or obligation, if any, of the
Company to redeem, repay or purchase 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 price or prices (or the method by which
such price or prices will be determined, or both) at which, the form or method
of payment therefor if other than in cash and the terms and conditions upon
which the Offered Debt Securities will be redeemed, repaid or purchased pursuant
to any such obligation; (ix) the terms for conversion or exchange, if any, of
the Offered Debt Securities; (x) any provision relating to the issuance of the
Offered Debt Securities at an original issue discount; (xi) if the amounts of
payments of principal of, premium, if any, and interest, if any, on
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the Offered Debt Securities are to be determined with reference to an index, the
manner in which such amounts shall be determined; (xii) any applicable United
States federal income tax consequences; (xiii) the currency or currencies for
which the Offered Debt Securities may be purchased and the currency or
currencies in which principal, premium, if any, and interest, if any, may be
payable; (xiv) if a trustee other than State Street with respect to any series
of Senior Debt Securities, State Street with respect to any series of
Subordinated Debt Securities or State Street with respect to any series of
Senior Subordinated Debt Securities is named for such series of Offered Debt
Securities, the name of such Trustee; and (xv) any other specific terms of the
Offered Debt Securities, including any deleted, modified or additional events of
default or remedies or additional covenants provided with respect to such
Offered Debt Securities, and any terms that may be required by or advisable
under applicable laws or regulations.
Unless otherwise specified in any Prospectus Supplement, the Debt
Securities will be issuable in registered form and in denominations of $1,000
and any integral multiple thereof (Section 2.7). No service charge will be made
for any transfer or exchange of any Debt Securities but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith (Section 2.8).
Debt Securities may bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate may be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes will be described in the
applicable Prospectus Supplement.
In determining whether the holders of the requisite aggregate principal
amount of outstanding Debt Securities of any series have given any request,
demand, authorization, direction, notice, consent or waiver under the
Indentures, the principal amount of any series of Debt Securities originally
issued at a discount from their stated principal amount that will be deemed to
be outstanding for such purposes will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in the form of one or more global securities ('Global Securities')
that will be deposited with, or on behalf of, a depositary (the 'Depositary')
identified in the Prospectus Supplement relating to such series. Global
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a Global Security (i) may not be
transferred except as a whole and (ii) may only be transferred (A) by the
Depositary for such Global Security to its nominee, (B) by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or (C) by
such Depositary or any such nominee to a successor Depositary or nominee of such
successor Depositary (Section 2.8).
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions generally
will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary. Such accounts shall be designated by the dealers,
underwriters or agents with respect to such Debt Securities or by the Company if
such Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ('participants') or persons that may
hold interests through participants. Ownership of beneficial interests in such
Global Security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the applicable Depositary or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
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As long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
of the series represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of any such Debt Securities in definitive form and will not be
considered the owners or holders thereof under the Indenture governing such Debt
Securities.
Payment of principal of, premium, if any, and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for a
series of Debt Securities or its nominee, upon receipt of any payment of
principal of, premium, if any, and interest, if any, in respect of a Global
Security representing any such Debt Securities, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
for such Securities as shown on the records of such Depositary or its nominee.
The Company also expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in 'street name.' Such payments will be the responsibility of such participants.
Neither the Company, the Trustee for such Debt Securities, any paying agent nor
the registrar for such Debt Securities will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of the Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series in exchange for the Global Security representing such
series of Debt Securities. In addition, the Company may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by a Global Security and, in such event, will
issue individual Debt Securities of such series in exchange for the Global
Security representing such series of Debt Securities. Further, if the Company so
specifies with respect to the Debt Securities of a series, an owner of a
beneficial interest in a Global Security representing Debt Securities of such
series may, on terms acceptable to the Company, the Trustee and the Depositary
for such Global Security, receive individual Debt Securities of such series in
exchange for such beneficial interests, subject to any limitations described in
the Prospectus Supplement relating to such Debt Securities. In any such
instance, an owner of a beneficial interest in a Global Security will be
entitled to physical delivery of individual Debt Securities of the series
represented by such Global Security equal in principal amount to such beneficial
interest and to have such Debt Securities registered in its name. Individual
Debt Securities of such series so issued will be issued in registered form and
in denominations, unless otherwise specified in the applicable Prospectus
Supplement relating to such series of Debt Securities, of $1,000 and integral
multiples thereof.
Events of Default. Unless otherwise specified in the applicable Prospectus
Supplement, an Event of Default is defined under each Indenture with respect to
the Debt Securities of any series issued under such Indenture as being: (a)
default in the payment of principal of or premium, if any, with respect to Debt
Securities of such series when due; (b) default in the payment of any
installment of interest upon any of the Debt Securities of such series when due,
continued for 30 days; (c) default in the payment or satisfaction of any sinking
fund or other purchase obligation with respect to Debt Securities of such series
when due; (d) default in the performance of any other covenant of the Company
applicable to Debt Securities of such series, continued for 60 days after
written notice to the Company by the Trustee or to the Company and the Trustee,
by the holders of at least 25% in aggregate principal amount of the Debt
Securities of such series then outstanding requiring the same to be remedied;
(e) certain events of bankruptcy, insolvency or reorganization of the Company;
and (f) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Significant Subsidiary
or under any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any
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indebtedness for money borrowed of the Company or any Significant Subsidiary
resulting in the acceleration of such indebtedness, or any default in payment of
such indebtedness (after expiration of any applicable grace periods and
presentation of any debt instruments, if required), if the aggregate amount of
all such indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $25,000,000 and there has
been a failure to obtain rescission or annulment of all such accelerations or to
discharge all such defaulted indebtedness within 20 days after written notice of
the type specified in the foregoing clause (d) (Section 5.1).
If any Event of Default shall occur and be continuing, the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding, by notice in writing to the Company
(and to the Trustee, if given by the holders), may declare the principal (or, in
the case of any series of Debt Securities originally issued at a discount from
their stated principal amount, such portion of the principal amount as may be
specified in the terms of such series) of all of the Debt Securities of such
series and the interest, if any, accrued thereon to be due and payable
immediately; provided, however, that the holders of a majority in aggregate
principal amount of the Debt Securities of such series then outstanding, by
notice in writing to the Company and the Trustee, may rescind and annul such
declaration and its consequences if all defaults under such Indenture are cured
or waived (Section 5.1).
Each Indenture provides that no holder of any series of Debt Securities
then outstanding may institute any suit, action or proceeding with respect to,
or otherwise attempt to enforce, such Indenture, unless (i) such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, (ii) the holders of not less than 25% in aggregate
principal amount of such series of Debt Securities then outstanding shall have
made written request to the Trustee to institute such suit, action or proceeding
and shall have offered to the Trustee such reasonable indemnity as it may
require with respect thereto and (iii) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding; provided that, subject to the
subordination provisions applicable to the Senior Subordinated Debt Securities
and the Subordinated Debt Securities, the right of any holder of any Debt
Security to receive payment of the principal of, premium, if any, or interest,
if any, on such Debt Security, on or after the respective due dates, or to
institute suit for the enforcement of any such payment shall not be impaired or
affected without the consent of such holder (Section 5.4). The holders of a
majority in aggregate principal amount of the Debt Securities of such series
then outstanding 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 with respect to the Debt Securities of such
series, provided that the Trustee may decline to follow such direction if the
Trustee determines that such action or proceeding is unlawful or would involve
the Trustee in personal liability (Section 5.7).
The Company is required to furnish to the Trustee annually a certificate as
to compliance by the Company with all conditions and covenants under each
Indenture (Section 4.3).
Discharge and Defeasance. Unless otherwise specified in the applicable
Prospectus Supplement, the Company can discharge or defease its obligations with
respect to any series of Debt Securities as set forth below (Article Ten).
The Company may discharge all of its obligations (except those set forth
below) to holders of any series of Debt Securities issued under any Indenture
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 (or scheduled for redemption within one year), by irrevocably
depositing with the Trustee cash or U.S. Government Obligations (as defined in
such Indenture), or a combination thereof, as trust funds in an amount certified
to be sufficient to pay when due the principal of, premium, if any, and
interest, if any, on all outstanding Debt Securities of such series and to make
any mandatory sinking fund payments, if any, thereon when due.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may also elect at any time to (a) defease and be discharged from all of
its obligations (except those set forth below) to holders of any series of Debt
Securities issued under each Indenture ('defeasance') or (b) be released from
all of their obligations with respect to certain covenants applicable to any
series of Debt Securities issued under each Indenture ('covenant defeasance'),
if, among other things: (i) the Company irrevocably deposits 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 when due the principal of, premium,
if any, and interest, if any, on all outstanding Debt
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Securities of such series and to make any mandatory sinking fund payments, if
any, thereon when due and such funds have been so deposited for 91 days; (ii)
such deposit will not result in a breach or violation of, or cause a default
under, any agreement or instrument to which the Company is a party or by which
it is bound; and (iii) the Company delivers to the Trustee an opinion of counsel
to the effect that the holders of such series of Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and that defeasance or
covenant defeasance will not otherwise alter the United States federal income
tax treatment of such holders? principal and interest payments, if any, on such
series of Debt Securities. Such opinion in the case of defeasance under clause
(a) above must be based on a ruling of the Internal Revenue Service or a change
in United States federal income tax law occurring after the date of the
Indenture relating to the Debt Securities of such series, since such a result
would not occur under current tax law (Section 10.1).
Notwithstanding the foregoing, no discharge, defeasance or covenant
defeasance described above shall affect the following obligations to or rights
of the holders of any series of Debt Securities: (i) rights of registration of
transfer and exchange of Debt Securities of such series, (ii) rights of
substitution of mutilated, defaced, destroyed, lost or stolen Debt Securities of
such series, (iii) rights of holders of Debt Securities of such series to
receive payments of principal thereof and premium, if any, and interest, if any,
thereon, upon the original due dates therefor (but not upon acceleration), and
to receive mandatory sinking fund payments thereon when due, if any, (iv)
rights, obligations, duties and immunities of the Trustee, (v) rights of holders
of Debt Securities of such series as beneficiaries with respect to property so
deposited with the Trustee payable to all or any of them and (vi) obligations of
the Company to maintain an office or agency in respect of Debt Securities of
such series (Section 10.1).
The Company may exercise the defeasance option with respect to any series
of Debt Securities notwithstanding the prior exercise of the covenant defeasance
option with respect to any series of Debt Securities. If the Company exercises
the defeasance option with respect to any series of Debt Securities, payment of
such series of Debt Securities may not be accelerated because of an Event of
Default with respect to such series of Debt Securities. If the Company exercises
the covenant defeasance option with respect to any series of Debt Securities,
payment of such series of Debt Securities may not be accelerated by reason of an
Event of Default with respect to the covenants to which such covenant defeasance
is applicable. However, if such acceleration were to occur by reason of another
Event of Default, the realizable value at the acceleration date of the cash and
U.S. Government Obligations in the defeasance trust could be less than the
principal of, premium, if any, and interest, if any, and any mandatory sinking
fund payments, if any, then due on such series of Debt Securities, in that the
required deposit in the defeasance trust is based upon scheduled cash flow
rather than market value, which will vary depending upon interest rates and
other factors.
Modification of the Indenture. Each Indenture provides that the Company and
the Trustee may enter into supplemental indentures without the consent of the
holders of the Debt Securities to (a) evidence the assumption by a successor
entity of the obligations of the Company under such Indenture, (b) add covenants
or new events of default for the protection of the holders of such Debt
Securities, (c) cure any ambiguity or correct any inconsistency in the
Indenture, (d) establish the form and terms of Debt Securities of any series,
(e) evidence the acceptance of appointment by a successor Trustee, (f) secure
such Debt Securities, (g) designate a bank or trust company other than State
Street to act as Trustee for a series of Senior Debt Securities, State Street to
act as Trustee for a series of Subordinated Debt Securities and State Street to
act as Trustee for a series of Senior Subordinated Debt Securities, (h) modify
the existing covenants and events of default solely in respect of, or add new
covenants and events of default that apply solely to, Debt Securities not yet
issued and outstanding on the date of such supplemental indenture, (i) provide
for the issuance of Debt Securities of any series in coupon form and
exchangeability of such Debt Securities for fully registered Debt Securities,
(j) modify, eliminate or add to the provisions of such Indenture as necessary to
effect the qualification of such Indenture under the Trust Indenture Act of 1939
and to add certain provisions expressly permitted by such Act, and (k) modify
the provisions to provide for the denomination of Debt Securities in foreign
currencies which shall not adversely affect the interests of the holders of such
Debt Securities in any material respect. (Section 8.1).
Each Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of Debt Securities of each series then
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outstanding and affected, to add any provisions to, or change in any manner or
eliminate any of the provisions of, such Indenture or any supplemental indenture
or modify in any manner the rights of the holders of the Debt Securities of such
series; provided that the Company and the Trustee may not, without the consent
of the holder of each outstanding Debt Security affected thereby, (a) extend the
stated final maturity of any Debt Security, reduce the principal amount thereof,
reduce the rate or extend the time of payment of interest, if any, thereon,
reduce or alter the method of computation of any amount payable on redemption,
repayment or purchase by the Company, change the coin or currency in which
principal, premium, if any, and interest, if any, are payable, reduce the amount
of the principal of any original issue discount security payable upon
acceleration or provable in bankruptcy, impair or affect the right to institute
suit for the enforcement of any payment or repayment thereof or, if applicable,
adversely affect any right of prepayment at the option of the holder or (b)
reduce the aforesaid percentage in aggregate principal amount of Debt Securities
of any series issued under such Indenture (Section 8.2).
Consolidation, Merger, Sale or Conveyance. Except as otherwise provided in
the applicable Prospectus Supplement, the Indentures provide that EMCOR may,
without the consent of the holders of Debt Securities, consolidate with, merge
into or transfer, exchange or dispose of all of its properties to, any other
corporation or partnership organized under the laws of the United States,
provided that (i) the successor corporation assumes all obligations of EMCOR by
supplemental indenture satisfactory in form to the applicable Trustee executed
and delivered to such Trustee, under the Indentures and the Debt Securities,
(ii) immediately after giving effect to such consolidation, merger, exchange or
other disposition, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing and (iii) certain other conditions are met. (Section 9.1).
Certain Definitions. Except as otherwise provided in the applicable
Prospectus Supplement, the following definitions are applicable to the
discussions of the Indentures (Article One).
'Consolidated Net Tangible Assets' means the aggregate amount of assets
included on the most recent consolidated balance sheet of EMCOR and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
'Indebtedness,' with respect to any person, means, without duplication:
(a)(i) the principal of, premium, if any, and interest, if any, on
indebtedness for money borrowed of such person, indebtedness of such person
evidenced by bonds, notes, debentures or similar obligations, and any
guaranty by such person of any indebtedness for money borrowed or
indebtedness evidenced by bonds, notes, debentures or similar obligations
of any other person, whether any such indebtedness or guaranty is
outstanding on the date of the Indenture or is thereafter created, assumed
or incurred, (ii) obligations of such person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (iii) the principal of and premium, if any, and interest, if
any, on indebtedness incurred, assumed or guaranteed by such person in
connection with the acquisition by it or any of its subsidiaries of any
other businesses, properties or other assets, (iv) lease obligations that
such person capitalized in accordance with Statement of Financial
Accounting Standards No. 13 promulgated by the Financial Accounting
Standards Board or such other generally accepted accounting principles as
may be from time to time in effect, (v) any indebtedness of such person
representing the balance deferred and unpaid of the purchase price of any
property or interest therein (except any such balance that constitutes an
accrued expense or trade payable) and any guaranty, endorsement or other
contingent obligation of such person in respect of any indebtedness of
another that is outstanding on the date of the Indenture or is thereafter
created, assumed or incurred by such person and (vi) obligations of such
person under interest rate, commodity or currency swaps, caps, collars,
options and similar arrangements if and to the extent that any of the
foregoing indebtedness in (i) through (vi) would appear as a liability on
the balance sheet of such person in accordance with generally accepted
accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clause (a)
above.
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'Restricted Subsidiary' means (a) any Subsidiary of EMCOR other than an
Unrestricted Subsidiary, and (b) any Subsidiary of EMCOR which was an
Unrestricted Subsidiary but which, subsequent to the date of the Indentures, is
designated by the Board of Directors of EMCOR to be a Restricted Subsidiary;
provided, however, that EMCOR may not designate any such Subsidiary to be a
Restricted Subsidiary if EMCOR would thereby breach any covenant or agreement
contained in the Indentures (on the assumptions that any outstanding
Indebtedness of such Subsidiary was incurred at the time of such designation).
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of EMCOR within the meaning of Rule 1.02(w) of Regulation S-X
promulgated by the Commission as in effect on the date of each respective
Indenture.
'Subsidiary' of any specified Person means any corporation of which such
Person, or such Person and one or more Subsidiaries of such Person, or any one
or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Person and its Subsidiaries to
elect a majority of the directors, either at all times, or so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
'Unrestricted Subsidiary' means (a) any Subsidiary of EMCOR acquired or
organized after the date of the Indentures, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to any Restricted
Subsidiary and (b) any Subsidiary of EMCOR substantially all the assets of which
consist of stock or other securities of a Subsidiary or Subsidiaries of the
character described in clause (a) above, unless and until such Subsidiary shall
have been designated to be a Restricted Subsidiary.
PROVISIONS APPLICABLE SOLELY TO SENIOR SUBORDINATED DEBT SECURITIES AND
SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness. The Senior Subordinated Debt Securities
will be subordinate and junior in right of payment, to the extent set forth in
the Senior Subordinated Debt Indenture, to all Senior Indebtedness of the
Company. The Senior Subordinated Debt Securities will rank senior to all
existing and future Indebtedness of the Company that is neither Senior
Indebtedness nor Senior Subordinated Indebtedness, and only Indebtedness of the
Company that is Senior Indebtedness will rank senior to the Senior Subordinated
Debt Securities in accordance with the subordination provisions of the Senior
Subordinated Debt Indenture.
'Senior Indebtedness' is defined in the Subordinated Debt Indenture and the
Senior Subordinated Debt Indenture with respect to the Company as Indebtedness
of the Company outstanding at any time (other than the Indebtedness evidenced by
the Debt Securities of any series) except (a) any Indebtedness as to which, by
the terms of the instrument creating or evidencing the same, it is provided that
such Indebtedness is not senior or prior in right of payment to the Debt
Securities or is pari passu or subordinate by its terms in right of payment to
the Debt Securities, (b) renewals, extensions and modifications of any such
Indebtedness, (c) any Indebtedness of the Company to a wholly-owned Subsidiary
of the Company, (d) interest accruing after the filing of a petition initiating
certain events of bankruptcy or insolvency unless such interest is an allowed
claim enforceable against the Company in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
'Senior Subordinated Indebtedness' of the Company means the Senior
Subordinated Debt Securities and any other Indebtedness of the Company that
ranks pari passu with the Senior Subordinated Debt Securities. Any Indebtedness
of the Company that is subordinate or junior by its terms in right of payment to
any other Indebtedness of the Company shall be subordinate to Senior
Subordinated Indebtedness of the Company unless the instrument creating or
evidencing the same or pursuant to which the same is outstanding specifically
provides that such Indebtedness (i) is to rank pari passu with other Senior
Subordinated Indebtedness of the Company and (ii) is not subordinated by its
terms to any Indebtedness of the Company which is not Senior Indebtedness of the
Company.
'Subordinated Indebtedness' of the Company means the Senior Subordinated
Debt Securities, any other Senior Subordinated Indebtedness of the Company and
any other Indebtedness that is subordinate or junior in right of payment to
Senior Indebtedness of the Company.
If (i) the Company should default in the payment of any principal of,
premium, if any, or interest, if any, on any Senior Indebtedness of the Company
when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise or (ii) any other
default with respect to Senior Indebtedness of the Company shall occur and the
maturity of the Senior Indebtedness has been accelerated
14
<PAGE>
in accordance with its terms, then, upon written notice of such default to the
Company by the holders of such Senior Indebtedness or any trustee therefor,
unless and until such default shall have been cured or waived or shall have
ceased to exist or such acceleration shall have been rescinded, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) will
be made or agreed to be made for principal of, premium, if any, or interest, if
any, on any of the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, or in respect of any redemption, retirement, purchase or other
acquisition of the Senior Subordinated Debt Securities or the Subordinated Debt
Securities other than those made in capital stock of EMCOR (or cash in lieu of
fractional shares thereof) (Sections 13.1 and 13.4 of the Senior Subordinated
Debt Indenture and Sections 13.1 and 13.4 of the Subordinated Debt Indenture).
If any default (other than a default described in the preceding paragraph)
occurs under the Senior Indebtedness of the Company, pursuant to which the
maturity thereof may be accelerated immediately or the expiration of any
applicable grace periods occurs (a 'Senior Nonmonetary Default'), then, upon the
receipt by the Company and the Trustee of written notice thereof (a 'Payment
Notice') from or on behalf of holders of 25% or more of the aggregate principal
amount of Senior Indebtedness specifying an election to prohibit such payment
and other action by the Company in accordance with the following provisions of
this paragraph, the Company may not make any payment or take any other action
that would be prohibited by the immediately preceding paragraph during the
period (the 'Payment Blockage Period') commencing on the date of receipt of such
Payment Notice and ending on the earlier of (i) the date, if any, on which the
holders of such Senior Indebtedness or their representative notify the Trustee
that such Senior Nonmonetary Default is cured or waived or ceases to exist or
the Senior Indebtedness to which such Senior Nonmonetary Default relates is
discharged or (ii) the 179th day after the date of receipt of such Payment
Notice. Notwithstanding the provisions described in the immediately preceding
sentence, the Company may resume payments on the Senior Subordinated Debt
Securities and the Subordinated Debt Securities after such Payment Blockage
Period.
If (i) (A) without the consent of the Company, a receiver, conservator,
liquidator or trustee of the Company or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (B) the Company is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Company under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect, and is not dismissed within 60 days after such
filing; (ii) the Company (A) commences a voluntary case or other proceeding
seeking liquidation, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or other relief with respect to itself or its
debt or other liabilities under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or (B) consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or (C) fails generally to, or cannot, pay its
debts generally as they become due or (D) takes any corporate action to
authorize or effect any of the foregoing; or (iii) any Subsidiary of the Company
takes, suffers or permits to exist any of the events or conditions referred to
in the foregoing clause (i) or (ii), then all Senior Indebtedness of the Company
(including any interest thereon accruing after the commencement of any such
proceedings) will first be paid in full before any payment or distribution,
whether in cash, securities or other property, is made by the Company to any
holder of Senior Subordinated Debt Securities or Subordinated Debt Securities on
account of the principal of, premium, if any, or interest, if any, on such
Senior Subordinated Debt Securities or Subordinated Debt Securities, as the case
may be. Any payment or distribution, whether in cash, securities or other
property (other than securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the indebtedness evidenced by the Senior Subordinated Debt
Securities or the Subordinated Debt Securities, to the payment of all Senior
Indebtedness of the Company then outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment) that
would otherwise (but for the subordination provisions) be payable or deliverable
in respect of the Senior Subordinated Debt Securities or the Subordinated Debt
Securities of any series will be paid or delivered directly to the holders of
Senior Indebtedness of the Company in accordance with the priorities then
existing among such holders until all Senior Indebtedness of the Company
(including any interest thereon accruing after the commencement of any such
proceedings) has been
15
<PAGE>
paid in full. In the event of any such proceeding, after payment in full of all
sums owing with respect to Senior Indebtedness of the Company, the holders of
Senior Subordinated Debt Securities, together with the holders of any
obligations of the Company ranking on a parity with the Senior Subordinated Debt
Securities, will be entitled to be repaid from the remaining assets of the
Company the amounts at that time due and owing on account of unpaid principal
of, premium, if any, or interest, if any, on the Senior Subordinated Debt
Securities and such other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any capital
stock or obligations of the Company ranking junior to the Senior Subordinated
Debt Securities (including the Subordinated Debt Securities) and such other
obligations (Section 13.1 of the Senior Subordinated Debt Indenture and Section
13.1 of the Subordinated Debt Indenture).
If any payment or distribution of any character, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in the subordination
provisions with respect to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, to the payment of all Senior Indebtedness of the
Company then outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment), shall be received by the
Trustee, or any holder of any Senior Subordinated Debt Securities or
Subordinated Debt Securities in contravention of any of the terms of the Senior
Subordinated Debt Indenture or the Subordinated Debt Indenture, as the case may
be, such payment or distribution of securities will be received in trust for the
benefit of, and will be paid over or delivered and transferred to, the holders
of the Senior Indebtedness of the Company then outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior Indebtedness of the Company remaining unpaid to the extent
necessary to pay all such Senior Indebtedness in full (Section 13.1 of the
Senior Subordinated Debt Indenture and Section 13.1 of the Subordinated Debt
Indenture).
By reason of such subordination, in the event of the insolvency of the
Company, holders of Senior Indebtedness of the Company may receive more,
ratably, than holders of the Senior Subordinated Debt Securities or Subordinated
Debt Securities. Such subordination will not prevent the occurrence of any Event
of Default (as defined in the Indentures) or limit the right of acceleration in
respect of the Senior Subordinated Debt Securities or Subordinated Debt
Securities.
CONCERNING THE TRUSTEE
Any of the Trustees under the Indentures may make loans to EMCOR in the
normal course of business. If a bank or trust company other than State Street
is to act as Trustee for a series of Debt Securities,
information concerning such other Trustee will be set forth in the Prospectus
Supplement relating to such series of Debt Securities.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company is 14,700,000 shares consisting
of 13,700,000 shares of Common Stock, par value $0.01 per share (the 'Common
Stock') and 1,000,000 shares of Preferred Stock, par value $.10 per share (the
'Preferred Stock') in such series and with such voting powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as may be fixed from time
to time by the Board of Directors for each series. The Board of Directors has
approved an amendment to the Company's Restated Certificate of Incorporation,
which if approved by shareholders, will increase the Company's authorized
capital stock to 31,000,000 shares consisting of 30,000,000 shares of Common
Stock and 1,000,000 shares of Preferred Stock. The following summary description
of certain provisions of the Company's Restated Certificate of Incorporation
(the 'Certificate of Incorporation') and the By-laws does not purport to be
complete and is qualified in its entirety by reference to said provisions.
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COMMON STOCK
As of December 31, 1997, 9,476,044 shares of Common Stock were issued and
outstanding. The outstanding Common Stock is, and any Common Stock offered
pursuant to this Prospectus and any Prospectus Supplement when issued and paid
for will be, fully paid and non-assessable.
Dividends. Dividends on the Common Stock will be paid if, when and as
determined by the Board of Directors of the Company out of funds legally
available for this purpose. The Company's working capital credit facility limits
the payment of dividends on its Common Stock.
Voting Rights. Holders of Common Stock are entitled to one vote for each
share held by them on all matters presented to shareholders.
Liquidation Rights. After satisfaction of the preferential liquidation
rights of any Preferred Stock, the holders of the Common Stock are entitled to
share, ratably, in the distribution of all remaining net assets.
Preemptive and Other Rights. The holders of Common Stock do not have
preemptive rights as to additional issues of Common Stock or conversion rights.
The shares of Common Stock are not subject to redemption or to any further calls
or assessments and are not entitled to the benefit of any sinking fund
provisions. The rights, preferences and privileges of holders of Common Stock
are subject to, and may be adversely affected by, the rights of the holder of
shares of any series of Preferred Stock which the Company may designate and
issue in the future.
PREFERRED STOCK
The Certificate of Incorporation authorizes the Board of Directors to issue
from time to time up to 1,000,000 shares of Preferred Stock, in one or more
series, and with such voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as may be fixed from time to time by the Board of
Directors for each series. No shares of Preferred Stock have been issued.
STOCKHOLDERS RIGHTS PLAN
The Company's Board of Directors enacted a stockholder rights plan (the
'Rights Plan') designed to protect the interests of the Company's stockholders
in the event of a potential takeover the terms of which are not approved by the
Board of Directors as being in the best interests of the Company and its
stockholders. Pursuant to the Rights Plan, on March 3, 1997 the Board declared a
dividend of one preferred share purchase right (a 'Right') for each outstanding
share of Common Stock. The dividend was paid on March 14, 1997 to the
stockholders of record on that date. Each Right entitles the registered holder
to purchase from the Company one one-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $.10 per share (the 'Preferred Stock')
of the Company at a price of $70 per one one-thousandth of a share of Preferred
Stock, subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement dated as of March 3, 1997, as the same may be
amended from time to time, between the Company and The Bank of New York, as
Rights Agent.
Shares of Preferred Stock purchasable upon exercise of the Rights will not
be redeemable. Each share of Preferred Stock will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of $1 per share
but will be entitled to an aggregate dividend of 1000 times the dividend
declared per share of Common Stock. In the event of liquidation, the holders of
the Preferred Stock will be entitled to a minimum preferential liquidation
payment of $100 per share (plus any accrued but unpaid dividends) but will be
entitled to an aggregate payment of 1000 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 1000 votes, voting
together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which shares of Common Stock are converted
or exchanged, each share of Preferred Stock will be entitled to received 1000
times the amount received per share of Common Stock. These rights are protected
by customary antidilution provisions.
In the event that any person or group of affiliated persons acquires
beneficial ownership of 15% or more of the Company's outstanding Common Stock
(an 'Acquiring Person'), each holder of a Right, other than Rights
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beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right at the then
current exercise price of the Right, that number of shares of Common Stock
having a market value of two times the exercise price of the Right.
In the event that, after a person or group has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provision will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become void) will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of common stock of
the person with whom the Company has engaged in the foregoing transaction (or
its parent), which number of shares at the time of such transaction will have a
market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
shares of Common Stock or the occurrence of an event described in the prior
paragraph, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by such person or group which will have become void), in whole
or in part, at an exchange ratio of one share of Common Stock, or one
one-thousandth of a share of Preferred Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
At any time prior to the time an Acquiring Person becomes such, the Board
of Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 per Right (the 'Redemption Price'). The redemption of the Rights
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable, the Company may, except with
respect to the Redemption Price, amend the Rights in any manner. After the
Rights are no longer redeemable, the Company may, except with respect to the
Redemption Price, amend the Rights in any manner that does not adversely affect
the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
DESCRIPTION OF WARRANTS
EMCOR may issue Warrants, including Warrants to purchase Common Stock or
Preferred Stock and Warrants to purchase Debt Securities. Warrants may be issued
independently of or together with any other Securities and may be attached to or
separate from such Securities. Each series of Warrants will be issued under a
separate Warrant Agreement (each a 'Warrant Agreement') to be entered into
between EMCOR and a Warrant Agent ('Warrant Agent'). The Warrant Agent will act
solely as an agent of EMCOR in connection with the Warrants of such series and
will not assume any obligation or relationship of agency or trust for or with
holders or beneficial owners of Warrants. The following sets forth certain
general terms and provisions of the Warrants offered hereby. Further terms of
the Warrants and the applicable Warrant Agreement will be set forth in the
applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the following terms,
where applicable, of the Warrants in respect of which this Prospectus is being
delivered: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued; (iv)
the designation, aggregate principal amount and terms of the securities
purchasable upon exercise of such Warrants; (v) the designation and terms of the
Securities with which such Warrants are issued and the number of such Warrants
issued with each such security; (vi) if applicable, the date on and after which
such Warrants and the related securities will be separately transferable; (vii)
the price at which the securities purchasable upon exercise of such Warrants may
be purchased; (viii) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire; (ix) the minimum or
maximum amount of such Warrants which may be exercised at any one time; (x)
information with respect to book-entry procedures, if any; (xi) a discussion of
certain Federal
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income tax considerations; and (xii) any other terms of such Warrants, including
terms, procedures and limitations relating to the exchange and exercise of such
Warrants.
PLAN OF DISTRIBUTION
EMCOR may sell the Securities to or through underwriters or dealers, and
also may sell the Securities directly to one or more other purchasers or through
agents. The applicable Prospectus Supplement will set forth the names of any
underwriters or agents involved in the sale of the Offered Securities and any
applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the Offered Securities
at a fixed price or prices, which may be changed, or from time to time at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. In connection with the sale of the
Securities, underwriters or agents may be deemed to have received compensation
from EMCOR in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of the Securities for whom they may act as
agent. Underwriters or agents may sell the Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the purchasers for whom
they may act as agent.
The Securities (other than the Common Stock), when first issued, will have
no established trading market. Any underwriters or agents to or through whom
Securities are sold by EMCOR for public offering and sale may make a market in
such 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 Securities.
Any underwriters, dealers or agents participating in the distribution of
the Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers or agents may be entitled, under
agreements entered into with EMCOR, to indemnification against or contribution
toward certain civil liabilities, including liabilities under the Securities
Act.
If so indicated in the Prospectus Supplement, EMCOR will authorize
underwriters or other persons acting as its agents to solicit offers by certain
institutions to purchase Securities from it pursuant to contracts providing for
payment and delivery on a future date. Institutions with which such contracts
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and others,
but in all cases will be subject to the condition that the purchase of the
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
agents will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Securities will
be passed upon for EMCOR by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), New York, New York.
EXPERTS
The consolidated financial statements and schedules incorporated by
reference in this prospectus and elsewhere in the registration statement, to the
extent and for the periods indicated in their reports, have been audited by
Arthur Andersen LLP and Deloitte & Touche LLP, independent public accountants,
and are included herein in reliance upon the authority of said firms as experts
in giving said reports.
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NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE SHARES BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH
THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
The Company.................................... 3
Risk Factors................................... 4
Use of Proceeds................................ 7
Description of Debt Securities................. 8
Description of Capital Stock................... 16
Description of Warrants........................ 18
Plan of Distribution........................... 19
Legal Matters.................................. 19
Experts........................................ 19
</TABLE>
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EMCOR GROUP, INC.
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PROSPECTUS
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, 1998
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company in connection with the
offering described in this Registration Statement are as follows:
<TABLE>
<S> <C>
Registration Fee............................................................................ $ 59,000
Legal fees and expenses..................................................................... 175,000
Blue Sky fees and expenses.................................................................. 7,000
Accounting fees and expenses................................................................ 25,000
Printing and duplicating expenses........................................................... 200,000
Miscellaneous expenses...................................................................... 34,000
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Total..................................................................................... $ 500,000
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation provides, as do the charters of many other
publicly held companies, that the personal liability of directors of the Company
to the Company is eliminated to the maximum extent permitted by Delaware law.
The Certificate of Incorporation and By-Laws provide 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 Delaware law from time
to time, and the By-Laws provide for various procedures relating thereto.
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
Delaware 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 Certificate of Incorporation absolves directors of liability for
negligence in the performance of their duties, including gross negligence.
However, 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.
Under Delaware 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 Company 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 Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the Company.
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 involved in, any action, suit, or proceeding by reason of the fact that he or
she 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 full extent
authorized by Delaware law against all expense, liability, or loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
to be paid in settlement) reasonably incurred by such person in connection
therewith. The rights conferred thereby will be deemed to be contract rights and
will include the right to be paid by the Company for the expenses incurred in
defending the proceedings specified above in advance of their final disposition.
II-1
<PAGE>
The Company is party to an indemnification agreement with each of its
directors and officers. These indemnification agreements provide for, among
other things, the indemnification by the Company of its directors and officers
to the fullest extent permitted by law and the advancement of attorney's fees
and expenses. The agreements also state that in the event of a potential change
in control, the Company shall establish trusts, which are irrevocable except
upon the indemnitees' written consent, to fund its indemnification obligations
thereunder.
ITEM 16. EXHIBITS.
See Exhibit Index.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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, as amended (the 'Securities Act');
(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. 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 from of prospectus filed with the Commission
pursuant to Rule 462(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the 'Calculation of Registration Fee' table in
the effective Registration Statement; and
(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, 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.
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of the EMCOR
annual report pursuant to section 13(a) or section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities 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 registrants will, unless
in the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-2
<PAGE>
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 Amendment No. 1 to
its Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Norwalk, State of Connecticut on
February 3, 1998.
EMCOR GROUP, INC.
By ______/s/ Sheldon I. Cammaker______
Sheldon I. Cammaker,
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- --------------------------------------------- -----------------
<C> <S> <C>
(1) Principal Executive Officer:
* Chairman of the Board of Directors and Chief February 3, 1998
Frank T. MacInnis Executive Officer
(2) Principal Financial Officer:
* Executive Vice President and Chief Financial February 3, 1998
Leicle E. Chesser Officer
(3) Principal Accounting Officer:
* Vice President and Controller February 3, 1998
Mark A. Pompa
(4) Directors:
* Director February 3, 1998
Stephen W. Bershad
* Director February 3, 1998
David A.B. Brown
* Director February 3, 1998
Albert Fried, Jr.
* Director February 3, 1998
Malcolm T. Hopkins
* Director February 3, 1998
Kevin C. Toner
By: /s/ Sheldon I. Cammaker
Name: Sheldon I Cammaker
Attorney-In-Fact
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ---------- --------------------------------------------------------------------------------------------------------
<C> <C> <S>
***1.1 -- Form of Underwriting Agreement (Debt Securities and Warrants to Purchase Debt Securities).
***1.2 -- Form of Underwriting Agreement (Equity Securities and Warrants to Purchase Equity Securities).
*4.1 -- Form of Debt Securities.
*4.2 -- Form of Senior Debt Indenture between EMCOR and State Street, as Trustee.
*4.3 -- Form of Senior Subordinated Debt Indenture between EMCOR and State Street, as Trustee.
*4.4 -- Form of Subordinated Debt Indenture between EMCOR and State Street, as Trustee.
*4.5 -- Form of Warrant Agreement for Preferred Stock and Common Stock (including form of Warrant
Certificate).
*4.6 -- Form of Warrant Agreement for Debt Securities (including form of Warrant Certificate).
*5.1 -- Opinion of Simpson Thacher & Bartlett.
**12.1 -- Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Dividends.
*23.1 -- Consent of Arthur Andersen LLP.
*23.2 -- Consent of Deloitte & Touche LLP.
*23.3 -- Consent of Simpson Thacher & Bartlett (included in Exhibit 5.1).
**24.1 -- Powers of Attorney of Board of Directors of EMCOR (included on signature page).
*25.1 -- Statement of eligibility of State Street as Trustee under the Senior Debt Indenture.
*25.2 -- Statement of eligibility of State Street as Trustee under the Subordinated Debt Indenture
(included in Exhibit 25.1).
*25.3 -- Statement of eligibility of State Street as Trustee under the Senior Subordinated Debt
Indenture (included in Exhibit 25.1).
</TABLE>
- ------------------
* Filed herewith.
** Previously filed.
*** To be incorporated by reference, as necessary, as an exhibit to one or more
reports on Form 8-K.
<PAGE>
Exhibit 4.1
[FORM OF FACE OF SECURITY]
EMCOR GROUP, INC.
[TITLE OF SERIES OF SECURITIES]
No. ____ $__________
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS REGISTERED GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
EMCOR GROUP, INC., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), for value received, hereby promises to pay
to _____________, or registered assigns, the principal sum of _____________ at
the office or agency of the Company referred to below, on ___________, and to
pay interest, semi-annually on _________ and _________, of each year, on said
principal sum at said office or agency, at the rate of ____% per annum, from the
___________ or ___________, as the case may be, next preceding the date of this
Security to which interest has been paid, unless the date hereof is the date to
which interest has been paid, in which case from the date of this Security, or
unless no interest has been paid on the Securities, in which case from
_________, until payment of said principal sum has been made or duly provided
for. Notwithstanding the foregoing, if the date hereof is after the ____ day of
the calendar month preceding any __________ or __________, as the case may be,
and prior to such __________ or __________, this Security shall bear interest
from such __________ or __________; provided, however, that if and to the extent
that the Company shall default in the payment of interest due on such __________
or __________, then this Security shall bear interest from the next preceding
__________ or __________ to which interest has been paid, or, if no interest has
been paid on the Securities, from ____________. The interest so payable on any
_________ or __________ will, subject to certain exceptions provided in the
Indenture referred to on the reverse hereof, be paid to the person in whose name
this Security is registered at the close of business on the ____ day of the
calendar month preceding such _________ or __________.
Reference is made to the further provisions of this Security
set forth on the reverse hereof. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
The Security shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed in its name and on its behalf by the signature of its
_______________ and by signature of its _______________ and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated: _______________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION [SEAL] EMCOR GROUP, INC.
This is one of the Securities of the series designated
herein referred to in the within mentioned Indenture.
____________, as Trustee By:__________________________
By:___________________________
(Authorized Officer) By:__________________________
<PAGE>
[FORM OF REVERSE OF SECURITY]
EMCOR GROUP, INC.
[TITLE OF SERIES OF SECURITIES]
This Security is one of a duly authorized issue of Securities
of the Company, designated as its ____________________ (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) to the aggregate principal amount of $_____________, all issued or to
be issued under and pursuant to an Indenture, dated as of ___________ (herein
called the "Indenture"), duly executed and delivered by the Company and
__________, as Trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities are issuable in registered form only, without coupons,
in denominations of $______ and integral multiples thereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal hereof and interest hereon
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities at
any time by the Company and the Trustee with the consent of the holders of a
majority in aggregate principal amount of the outstanding Securities. The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the outstanding Securities, on behalf of the
holders of all the Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the holder of
this Security shall be conclusive and binding upon such holder and upon all
future holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
Subject to the terms of the Indenture, the Company may elect
[either (i)] to defease and be discharged from any and all obligations with
respect to the Securities [or (ii) to be released from their obligations with
respect to certain covenants applicable to the Securities], upon compliance by
the Company with certain conditions set forth therein, which provisions apply to
this Security.
[Discussion of provisions relating to redemption, if applicable.]
[Discussion of provisions relating to subordination, if applicable.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligations of the
Company, which are absolute and unconditional, to pay the principal of and
interest on this Security at the place, at the respective times, at the rate and
in the coin or currency prescribed herein.
Upon the presentment for registration of transfer of this
Security at the office or agency of the Company at ____________________, a new
Security or Securities of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee or any Security registrar, co-registrar,
paying agent or authenticating agent, may deem and treat the registered holder
hereof as the absolute owner of this Security, for the purpose of receiving
payment hereof, or on account hereof, and for all other purposes, and the
Company or the Trustee or any Security registrar, co-registrar, paying agent or
authenticating agent shall not be affected by any notice to the contrary.
<PAGE>
Exhibit 4.2
EMCOR GROUP, INC.
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
Form of Senior Indenture
Dated as of _________ __, 199_
<PAGE>
CROSS REFERENCE SHEET*
-----------
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of ___________ __, 199_ between EMCOR GROUP, INC. and State Street Bank and
Trust Company, Trustee:
<TABLE>
<CAPTION>
Section of the Act Section of Indenture
<S> <C>
310(a)(1), (2) and (5)...............................6.9
310(a)(3) and (4)....................................Inapplicable
310(b)...............................................6.8 and 6.10(a), (b) and (d)
310(c)...............................................Inapplicable
311(a)...............................................6.13
311(b)...............................................6.13
311(c)...............................................Inapplicable
312(a)...............................................4.1 and 4.2(a)
312(b)...............................................4.2(a) and (b)(i) and (ii)
312(c)...............................................4.2(c)
313(a)...............................................4.4(a)(i), (ii), (iii), (iv), (v), (vi) and (vii)
313(a)(5)............................................Inapplicable
313(b)(1)............................................Inapplicable
313(b)(2)............................................4.4(b)
313(c)...............................................4.4(c)
313(d)...............................................4.4(d)
314(a)...............................................4.3
314(b)...............................................Inapplicable
314(c)(1) and (2)....................................11.5
314(c)(3)............................................Inapplicable
314(d)...............................................Inapplicable
314(e)...............................................11.5
314(f)...............................................Inapplicable
315(a), (c) and (d)..................................6.1
315(b)...............................................5.8
315(e)...............................................5.9
316(a)(1)............................................5.7
316(a)(2)............................................Not required
316(a) (last sentence)...............................7.4
316(b)...............................................5.4
317(a)...............................................5.2
317(b)...............................................3.5(a)
318(a)...............................................11.7
</TABLE>
- ---------------------
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE ONE
DEFINITIONS................................................. 1
Affiliate ............................................................................... 2
Authenticating Agent ............................................................................... 2
Bankruptcy Code ............................................................................... 2
Board of Directors ............................................................................... 2
Board Resolution ............................................................................... 2
Business Day ............................................................................... 2
Commission ............................................................................... 2
Consolidated Net Tangible Assets...................................................................... 2
Corporate Trust Office ............................................................................... 2
Depositary ............................................................................... 2
Dollars ............................................................................... 2
$ ............................................................................... 2
Exchange Act ............................................................................... 2
Event of Default ............................................................................... 2
Global Security ............................................................................... 3
Holder ............................................................................... 3
Holder of Securities ............................................................................... 3
Securityholder ............................................................................... 3
Indebtedness ............................................................................... 3
Indenture ............................................................................... 3
interest ............................................................................... 3
Issuer ............................................................................... 3
Issuer Order ............................................................................... 3
Officers' Certificate ............................................................................... 3
Opinion of Counsel ............................................................................... 4
original issue date ............................................................................... 4
original issue discount............................................................................... 4
Original Issue Discount Security...................................................................... 4
Outstanding ............................................................................... 4
Periodic Offering ............................................................................... 4
Person ............................................................................... 5
Place of Payment ............................................................................... 5
principal ............................................................................... 5
principal amount ............................................................................... 5
record date ............................................................................... 5
Responsible Officer ............................................................................... 5
Restricted Subsidiary ............................................................................... 5
Securities Act ............................................................................... 5
Security ............................................................................... 5
Securities ............................................................................... 5
Significant Subsidiary ............................................................................... 5
Subsidiary ............................................................................... 5
Trust Indenture Act of 1939........................................................................... 5
Trustee ............................................................................... 5
Unrestricted Subsidiary............................................................................... 6
U.S. Government Obligations........................................................................... 6
vice president ............................................................................... 6
Yield to Maturity ............................................................................... 6
ARTICLE TWO
SECURITIES.................................................. 6
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 2.1 Forms Generally................................................................ 6
SECTION 2.2 Form of Trustee's Certificate of Authentication................................ 6
SECTION 2.3 Amount Unlimited, Issuable in Series........................................... 7
SECTION 2.4 Authentication and Delivery of Securities...................................... 9
SECTION 2.5 Execution of Securities........................................................ 11
SECTION 2.6 Certificate of Authentication.................................................. 11
SECTION 2.7 Denomination and Date of Securities; Payments of Interest...................... 11
SECTION 2.8 Registration, Transfer and Exchange............................................ 12
SECTION 2.10 Cancellation of Securities; Disposition Thereof................................ 14
SECTION 2.11 Temporary Securities........................................................... 14
SECTION 2.12 CUSIP Numbers.................................................................. 15
ARTICLE THREE
COVENANTS OF THE ISSUER........................................... 15
SECTION 3.1 Payment of Principal and Interest.............................................. 15
SECTION 3.2 Offices for Notices and Payments, etc.......................................... 15
SECTION 3.3 No Interest Extension.......................................................... 15
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office............................. 15
SECTION 3.5 Provision as to Paying Agent................................................... 15
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE............................................ 16
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders.............................................................. 16
SECTION 4.2 Preservation and Disclosure of Securityholders Lists........................... 16
SECTION 4.3 Reports by the Issuer.......................................................... 17
SECTION 4.4 Reports by the Trustee......................................................... 18
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT............................................. 18
SECTION 5.1 Events of Default.............................................................. 18
SECTION 5.2 Payment of Securities on Default; Suit Therefor................................ 20
SECTION 5.3 Application of Moneys Collected by Trustee..................................... 21
SECTION 5.4 Proceedings by Securityholders................................................. 22
SECTION 5.5 Proceedings by Trustee......................................................... 22
SECTION 5.6 Remedies Cumulative and Continuing............................................. 22
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders.............................................................. 23
SECTION 5.8 Notice of Defaults............................................................. 23
SECTION 5.9 Undertaking to Pay Costs....................................................... 23
ARTICLE SIX
CONCERNING THE TRUSTEE............................................ 23
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to
Default...................................................................... 23
SECTION 6.2 Certain Rights of the Trustee.................................................. 24
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof.............................................. 25
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc....................... 25
</TABLE>
- ii -
<PAGE>
<TABLE>
<S> <C>
SECTION 6.5 Moneys Held by Trustee......................................................... 25
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim................ 26
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc......................... 26
SECTION 6.8 Qualification of Trustee; Conflicting Interests................................ 26
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different Trustees for
Different Series............................................................. 26
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee...................... 27
SECTION 6.11 Acceptance of Appointment by Successor Trustee................................. 28
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee......... 28
SECTION 6.13 Preferential Collection of Claims Against the Issuer........................... 29
SECTION 6.14 Appointment of Authenticating Agent............................................ 29
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS........................................ 30
SECTION 7.1 Evidence of Action Taken by Securityholders.................................... 30
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities................. 30
SECTION 7.3 Holders to be Treated as Owners................................................ 30
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.............................. 30
SECTION 7.5 Right of Revocation of Action Taken............................................ 31
SECTION 7.6 Record Date for Consents and Waivers........................................... 31
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES........................................... 31
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders..................... 31
SECTION 8.2 Supplemental Indentures with Consent of Securityholders........................ 33
SECTION 8.3 Effect of Supplemental Indenture............................................... 34
SECTION 8.4 Documents to Be Given to Trustee............................................... 34
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures................... 34
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER
DISPOSITION................................................. 34
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms................................. 34
SECTION 9.2 Successor Corporation to be Substituted........................................ 35
SECTION 9.3 Opinion of Counsel to be Given Trustee......................................... 35
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS.................................... 35
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant Defeasance................... 35
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities............ 37
SECTION 10.3 Repayment of Moneys Held by Paying Agent....................................... 37
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years.................................................................... 37
SECTION 10.5 Indemnity for U.S. Government Obligations...................................... 38
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS........................................... 38
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability............................................. 38
</TABLE>
- iii -
<PAGE>
<TABLE>
<S> <C>
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities................................................................... 38
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture............................ 38
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities............... 38
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be
Contained Therein............................................................ 39
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays................................ 39
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of
1939......................................................................... 39
SECTION 11.8 GOVERNING LAW.................................................................. 39
SECTION 11.9 Counterparts................................................................... 40
SECTION 11.10 Effect of Headings............................................................. 40
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS.................................. 40
SECTION 12.1 Applicability of Article....................................................... 40
SECTION 12.2 Notice of Redemption; Partial Redemptions...................................... 40
SECTION 12.3 Payment of Securities Called for Redemption.................................... 41
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption................................................................... 41
SECTION 12.5 Mandatory and Optional Sinking Funds........................................... 41
</TABLE>
- iv -
<PAGE>
FORM OF SENIOR INDENTURE
THIS SENIOR INDENTURE, dated as of _________ __, 199_ between EMCOR
GROUP, INC., a Delaware corporation (the "Issuer"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided herein or in any indenture supplemental hereto or
unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted on the date of this
Indenture.
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. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of _________ __, 199__.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
<PAGE>
2
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code ss.ss. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers' Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee of a series of
Securities at which the trust created by this Indenture shall, at any particular
time, be principally administered, which office is, at the date as of which this
Indenture is dated, located at Goodwin Square, 225 Asylum Street, Hartford, CT
06103.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
<PAGE>
3
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if
any, on indebtedness for money borrowed of such Person, indebtedness of
such Person evidenced by bonds, notes, debentures or similar
obligations, and any guaranty by such Person of any indebtedness for
money borrowed or indebtedness evidenced by bonds, notes, debentures or
similar obligations of any other Person, whether any such indebtedness
or guaranty is outstanding on the date of this Indenture or is
thereafter created, assumed or incurred, (ii) obligations of such
Person for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction; (iii) the principal
of and premium, if any, and interest, if any, on indebtedness incurred,
assumed or guaranteed by such Person in connection with the acquisition
by it or any of its subsidiaries of any other businesses, properties or
other assets; (iv) lease obligations which such Person capitalized in
accordance with Statement of Financial Accounting Standards No. 13
promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in
effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest
therein (except any such balance that constitutes an accrued expense or
trade payable) and any guaranty, endorsement or other contingent
obligation of such Person in respect of any indebtedness of another
that is outstanding on the date of this Indenture or is thereafter
created, assumed or incurred by such Person; and (vi) obligations of
such Person under interest rate, commodity or currency swaps, caps,
collars, options and similar arrangements if and to the extent that any
of the foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with
generally accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness
in clause (a) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether at
stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means EMCOR Group, Inc., a Delaware corporation, and, subject
to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
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4
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article Ten hereof shall not be applicable), or
portions thereof, for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
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5
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee of a
series of Securities, means any officer of the Trustee with direct
responsibility for the administration of the trust created by this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other
than an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was
an Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be a
Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding Indebtedness
of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of the Issuer within the meaning of Rule 1.02(w) of Regulation S-X
promulgated by the Commission as in effect on the date of this Indenture.
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person, or any
one or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer
acquired or organized after the date hereof, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to any Restricted
Subsidiary, and (b) any Subsidiary of the Issuer substantially all the assets of
which consist of stock or other securities of a Subsidiary or Subsidiaries of
the character described in clause (a) of this paragraph, unless and
<PAGE>
6
until such Subsidiary shall have been designated to be a Restricted Subsidiary
pursuant to clause (b) of the definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By_______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
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7
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By ________________________________
as Authenticating Agent
By _______________________________
Authorized Signatory
SECTION 2.3 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 and with all other unsecured and unsubordinated debt of the
Issuer. There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set forth in
a Board Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series:
(1) the designation of the Securities of the series, which
shall distinguish the Securities of such series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, on which any such interest shall be payable and
on which a record shall be taken for the determination of Holders to
whom any such interest is payable or the method by which such rate or
rates or date or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of, premium, if any, and interest, if any, on Securities of
the series shall be payable (if other than as provided in Section 3.2)
and the office or agency for the Securities of the series maintained by
the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, at its option and
the period or periods within which, the price or prices (or the method
by which such price or prices shall be determined or both) at which,
the form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series may be
so redeemed, purchased or repaid, in whole or in part, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by
<PAGE>
8
which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any terms
and conditions upon which and the manner in which (if different from
the provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as
Global Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(13) any deleted, modified or additional events of default or
remedies or any deleted, modified or additional covenants with respect
to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(15) any provision relating to the issuance of Securities of
such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrete, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrete at such rate or rates);
(16) if other than Dollars, the foreign currency in which
payment of the principal of, premium, if any, and interest, if any, on
the Securities of such series shall be payable;
(17) if other than State Street Bank and Trust Company is to
act as Trustee for the Securities of such series, the name and
Corporate Trust Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if
any, and interest, if any, on the Securities of such series are to be
determined with reference to an index, the manner in which such amounts
shall be determined;
(19) the terms for conversion or exchange, if any, with
respect to the Securities of such series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or pursuant
to the Board Resolution or Officers' Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the
<PAGE>
9
Indenture for all purposes relating to Securities of such series as fully as if
such Board Resolution or Officers' Certificate were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures
and agreed to by the Trustee, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions provided that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Issuer Order may
be delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c)
the maturity date or dates, original issue date or dates, interest rate
or rates, if any, and any other terms of Securities of such series
shall be determined by an Issuer Order or pursuant to such procedures,
(d) if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such series
were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities stating that the form or forms and terms of
the Securities have been established pursuant to Sections 2.1 and 2.3
and comply with this Indenture and covering such other matters as the
Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter from legal counsel addressed to the Trustee permitting it
to rely on an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such
series have been duly authorized and established in conformity
with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities of such series have been duly
authorized and established in conformity with the provisions
of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities of such series
have been established pursuant to a Board Resolution, an
Officers' Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as
are to
<PAGE>
10
be established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled
to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and
the performance by the Issuer of its obligations under, the
Securities of such series will not contravene any provision of
applicable law or the articles of incorporation or bylaws of
the Issuer or any agreement or other instrument binding upon
the Issuer or any of its Subsidiaries that is material to the
Issuer and its Subsidiaries, considered as one enterprise, or,
to such counsel's knowledge after the inquiry indicated
therein, any judgment, order or decree of any governmental
agency or any court having jurisdiction over the Issuer or any
Subsidiary of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the
Securities, except such as are specified and have been
obtained and such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Securities.
In addition, if the authentication and delivery relates to a new series
of Securities created by an indenture supplemental hereto, such Opinion of
Counsel shall also state that all laws and requirements with respect to the form
and execution by the Issuer of the supplemental indenture with respect to the
series of Securities have been complied with, the Issuer has corporate power to
execute and deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental indenture has been
executed and delivered and constitutes the legal, valid and binding obligation
of the Issuer enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Delaware and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers 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 the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
<PAGE>
11
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to the
Securities of any series, if not so established, in denominations of $1,000 and
any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent
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12
record date or (b) as determined by such other procedure as is mutually
acceptable to the Issuer and the Trustee. The term "record date" as used with
respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, if such interest payment
date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth day
of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if any,
and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2.
The Issuer 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 of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's
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13
election pursuant to Section 2.3 that such Securities be represented by one or
more Global Securities shall no longer be effective and the Issuer shall
execute, and the Trustee, upon receipt of an Issuer Order for the authentication
and delivery of definitive Securities of such series, will authenticate and
deliver Securities of such series in definitive registered form, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities.
The Issuer 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
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or defaced
or be destroyed, lost or stolen, the Issuer in its discretion may execute, and
upon the written request of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate, if any,
and original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substitute Security
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as may be required by the Trustee or the
Issuer or any such agent to indemnify and defend and to save each of the Trustee
and the Issuer and any such agent harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
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14
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Company. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and
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15
that reliance may be placed only on the other identification numbers printed on
the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, and an office or agency
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any payment
of the principal of, premium, if any, or interest, if any, on the
Securities when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the Securities,
set aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor
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16
under the Securities) to make any payment of the principal of, premium, if any,
or interest, if any, on the Securities when the same shall become due and
payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will,
on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January
1 and July 1, and
(b) at such other times as the Trustee may request in writing,
within 15 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at
<PAGE>
17
the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Issuer is not required to file information, documents or reports pursuant to
either of such Sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act, in
respect of a debt security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his knowledge of the Issuer's compliance
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18
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
or pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities or in the form of Security, for such series:
(a) default in the payment of the principal of or premium, if
any, of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(b) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall become
due and payable, and continuance of such default for a period of 30
days; or
(c) default in the payment or satisfaction of any sinking fund
or other purchase obligation with respect to Securities of such series,
as and when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or in this Indenture continued
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by
certified or registered mail to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having
jurisdiction shall enter an order for relief with respect to the Issuer
or any of its Significant Subsidiaries under any applicable bankruptcy,
insolvency or other similar law of the United States of America, any
state thereof or the District of Columbia, or without the consent of
the Issuer a court having jurisdiction shall enter a judgment, order or
decree adjudging the Issuer or any of its Significant Subsidiaries
bankrupt or insolvent, or enter an order for relief for reorganization,
arrangement, adjustment or composition of or in respect of the Issuer
or any of its Significant Subsidiaries under any applicable bankruptcy,
insolvency or other similar law of the United States of America, any
state thereof or the District of Columbia, and the continuance of any
such judgment, order or decree is unstayed and in effect for a period
of 60 consecutive days; or
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19
(f) the Issuer or any of its Significant Subsidiaries shall
institute proceedings for entry of an order for relief with respect to
the Issuer or any of its Significant Subsidiaries under any applicable
bankruptcy, insolvency or other similar law of the United States of
America, any state thereof or the District of Columbia, or for an
adjudication of insolvency, or shall consent to the institution of
bankruptcy or insolvency proceedings against it, or shall file a
petition seeking, or seek or consent to reorganization, arrangement,
composition or relief under any applicable bankruptcy, insolvency or
other similar law of the United States of America, any state thereof or
the District of Columbia, or shall consent to the filing of such
petition or to the appointment of a receiver, custodian, liquidator,
assignee, trustee, sequestrator or similar official of the Issuer or of
substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the United
States of America, any state thereof or the District of Columbia; or
(g) default under any bond, debenture, note or other evidence
of Indebtedness for money borrowed by the Issuer or any of its
Significant Subsidiaries or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Issuer or any of
its Significant Subsidiaries, whether such Indebtedness exists on the
date hereof or shall hereafter be created, which default shall have
resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, or any default in payment of such Indebtedness (after the
expiration of any applicable grace periods and the presentation of any
debt instruments, if required), if the aggregate amount of all such
Indebtedness that has been so accelerated and with respect to which
there has been such a default in payment shall exceed $25,000,000,
without each such default and acceleration having been rescinded or
annulled within a period of 20 days after there shall have been given
by certified or registered mail to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Securities of such series then Outstanding, a
written notice specifying each such default and requiring the Issuer to
cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
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20
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. Notwithstanding the previous sentence, no
waiver shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default with
respect to any covenant or provision which cannot be modified or amended without
the consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default or
other event.
If any Event of Default specified in Section 5.1(e) or 5.1(f) occurs
with respect to the Issuer, all unpaid principal amount (or, if the Securities
of any series then Outstanding are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of each such
series) and accrued interest on all Securities of each series then Outstanding
shall ipso facto become and be immediately due and payable without any
declaration or other act by the Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 30 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of
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21
principal and interest, if any, owing and unpaid in respect of the Securities of
such series, and, in case of any judicial proceedings, 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 and of the Securityholders allowed in such
judicial proceedings relative to the Issuer or any other obligor on the
Securities of such series, its or their creditors, or its or their property, and
to collect and receive any moneys or other property payable or deliverable on
any such claims, and to distribute the same after the deduction of its charges
and expenses, and any receiver, assignee or trustee or similar official in
bankruptcy or reorganization is hereby authorized by each of the Securityholders
to make such payments to the Trustee, and, if the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due it for compensation and expenses or otherwise pursuant to Section
6.6, including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees and expenses out of the estate in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a lien
on, and shall be paid out of, any and all distributions, dividends, moneys,
securities and other property which the Holders of the Securities of such series
may be entitled to receive in such proceedings, whether in liquidation or under
any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee pursuant to Section 6.6 except as a
result of its negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of
interest, if any, on the Securities of such series, in the order of the
maturity of the installments of such interest, if any, with interest
(to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest, if any, at the rate borne by
the Securities of such series, such payment to be made ratably to the
Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Securities
of such series for principal and interest, if any, with interest on the
overdue principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if
any, at the rate borne by the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amounts so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest, if any, without preference or priority
of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the
Issuer, its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on
<PAGE>
22
behalf or with the consent or approval of the Issuer shall be entitled, in case
of a default hereunder, to any benefit of this Indenture, except after prior
payment in full of the principal of all Securities of any series then
Outstanding and of all claims for interest not so transferred, pledged, kept
alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the Holder of every Security of such series
with every other Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of,
premium, if any, and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates shall not be
impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of such series; provided, however, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine upon advice of counsel that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors, its executive committee, or a trust
committee of directors or Responsible Officers or both shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of all of
the
<PAGE>
23
Securities of such series waive any past default or Event of Default hereunder
and its consequences except a default in the payment of interest, if any, on, or
the principal of, the Securities of such series. Upon any such waiver the
Issuer, the Trustee and the Holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.7, said default
or Event of Default shall for all purposes of the Securities and this Indenture
be deemed to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. In case an Event of Default with respect to the Securities of
a series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth
<PAGE>
24
in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 5.7 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to
<PAGE>
25
do by the Holders of not less than a majority in aggregate principal amount of
the Securities of all series affected then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such investigation shall be paid by
the Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in
<PAGE>
26
the premises. The obligations of the Issuer under this Section 6.6 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee. Such additional indebtedness shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1 or in connection with Article
Five hereof, the expenses (including the reasonable fees and expenses of its
counsel) and the compensation for the service in connection therewith are
intended to constitute expenses of administration under any bankruptcy law. The
provisions of this Section 6.6 shall survive the resignation or removal of the
Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for each series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than State Street Bank and
Trust Company, the Issuer and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
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delivered to the resigning trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges
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then unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer fails
to give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an
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29
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication and
delivery of Securities of any series by the Trustee or to the Trustee's
Certificate of Authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
for such series and a Certificate of Authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $25,000,000 (determined as provided in Section 6.9 with
respect to the Trustee) and subject to supervision or examination by federal or
state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
(including the authenticating agency contemplated by this Indenture) of any
Authenticating Agent, shall continue to be the Authenticating Agent with respect
to all series of Securities for which it served as Authenticating Agent without
the execution or filing of any paper or any further act on the part of the
Trustee or such Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
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(a) The fact and date of the execution by any Holder 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 or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person executing
the same.
(b) The ownership of Securities shall be proved by the
Security register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Affiliate of the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which a Responsible Officer of the Trustee knows are 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 Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days after such filing. Except as aforesaid, any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with
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respect to the Securities of such series in accordance with Section 5.7 of the
Indenture, (ii) consent to any supplemental indenture in accordance with Section
8.2 of the Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such Persons, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 120th day after such
record date, any such waiver or consent previously given shall automatically
and, without further action by any Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another to the Issuer, or
successive successions, and the assumption by the successor Person of
the covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of all
or any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the protection of less than all
series of Securities, stating that the same are expressly being
included solely for the protection of such series), and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided, however, that no
such action shall materially adversely affect the interests of the
Holders of the Securities;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in
coupon form (including Securities registrable as to principal only) and
to provide for exchangeability of such Securities for the Securities
issued hereunder in fully registered form and to make all appropriate
changes for such purpose;
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(g) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act of 1939,
or under any similar federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act of 1939, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act of 1939 as
in effect at the date as of which this instrument was executed or any
corresponding provision provided for in any similar federal statute
hereafter enacted;
(h) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than State Street Bank and Trust Company
as Trustee for a series of Securities 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 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the
provisions hereof as may be necessary or desirable to provide for the
denomination of Securities in foreign currencies which shall not
adversely affect the interests of the Holders of the Securities in any
material respect;
(j) to modify the covenants or Events of Default of the Issuer
solely in respect of, or add new covenants or Events of Default of the
Issuer that apply solely to, Securities not Outstanding on the date of
such supplemental indenture; and
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the stated final maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accretion of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuer thereof (or the time at which
any such redemption, repayment or purchase may be made), or make the principal
thereof (including any amount in respect of original issue discount), or
interest, if any, thereon payable in any coin or currency other than that
provided in the Securities or in accordance with the terms of the Securities, or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity
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33
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment or purchase at the option of the Securityholder, in each
case without the consent of the Holder of each Security so affected, or (b)
reduce the aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected. No consent of any Holder of
any Security shall be necessary under this Section 8.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may at its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and
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34
executed by the Issuer, and such Securities may be authenticated by the Trustee
and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia;
and (c) the due and punctual payment of the principal of and interest, if any,
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the Person (if other than the Issuer) formed by
such consolidation, or into which the Issuer shall have been merged, or by the
Person which shall have acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, 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, premium, if any, and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of the property and assets of the Issuer
(including any such intervening successor), the Issuer (including any such
intervening successor) shall continue to be liable on its obligations under this
Indenture and the Securities to the extent, but only to the extent, of liability
to pay the principal of, premium, if any, and interest, if any, on the
Securities at the time, places and rate prescribed in this Indenture and the
Securities. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of the Issuer, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
Person instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
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35
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and form (but not in
substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, shall receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption complies with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture; Covenant
Defeasance.
(A) If at any time (a) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities theretofore authenticated (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer (including all amounts, payable to the Trustee pursuant to Section
6.6), then this Indenture shall cease to be of further effect, and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent relating to the
satisfaction and discharge contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction and discharging this Indenture. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred, and to compensate the Trustee for any services
thereafter reasonably and properly rendered, by the Trustee in connection with
this Indenture or the Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
of any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities with
respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or by their terms are to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities
of such series, cash in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or non-callable,
non-prepayable bonds, notes, bills or other similar obligations issued or
guaranteed by the United States government or any agency thereof the full and
timely payment of which are backed by the full faith and credit of the United
States ("U.S. Government Obligations"), maturing as to principal and interest,
if any, at such times and in such amounts as will insure the availability of
cash, or a combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the principal of,
premium, if any, and interest, if any, on all Securities of such series on each
date that such principal of, premium, if any, or interest, if any, is due and
payable, and (2) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and
the Securities of such series; then the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such series on the
date of the deposit referred to in
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clause (ii) above and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except, in the case of
clause (c) of this Section 10.1(B), as to (i) rights of registration of transfer
and exchange of Securities of such series, (ii) rights of substitution of
mutilated, defaced, destroyed, lost or stolen Securities of such series, (iii)
rights of Holders of Securities of such series to receive payments of principal
thereof and premium, if any, and interest, if any, thereon upon the original
stated due dates therefor (but not upon acceleration), and remaining rights of
the Holders of Securities of such series to receive mandatory sinking fund
payments thereon, if any, when due, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the Holders of Securities
of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.2 with respect to Securities of such series) and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent contemplated by
this provision have been complied with, and at the cost and expense of the
Issuer, shall execute proper instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) U.S. Government Obligations,
maturing as to principal and interest, if any, at such times and in
such amounts as will insure the availability of cash, or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal of, premium, if any, and interest, if any, on all Securities
of such series on each date that such principal or interest, if any, is
due and payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred.
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SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of, premium, if any, or interest,
if any, on any Security of any series and not applied but remaining unclaimed
for two years after the date upon which such principal, premium, if any, or
interest, if any, shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
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 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
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SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
EMCOR Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, Connecticut 06851.
Any notice, direction, request or demand by the Issuer or any Holder of
Securities to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to State Street Bank and Trust
Company, Goodwin Square, 225 Asylum Street, Hartford, CT 06103, attention:
Corporate Trust Administration (EMCOR Group, Inc. [specify series of
Securities]).
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows 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, or in the exercise of reasonable care should know that the same are
erroneous.
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Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows 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, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, premium,
if any, or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included herein by any of Sections 310 to 317,
inclusive, or is deemed applicable to this Indenture by virtue of the provisions
of the Trust Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory
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or optional sinking fund, or both, if such be the case, (viii) whether interest,
if any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee, within 10 Business Days after the Issuer gives written notice to the
Trustee that such redemption is to occur, shall select, in such manner as it
shall deem appropriate and fair, Securities of such series to be redeemed.
Notice of the redemption shall be given only after such selection has been made.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount), on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
<PAGE>
41
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on
the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 12.5.
<PAGE>
42
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the expense
of the Issuer (if the Issuer shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default known to a Responsible Officer of the Trustee
shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.7 or
the default cured on or before the 60th day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
<PAGE>
43
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of _________ __, 199__.
EMCOR GROUP, INC.
By:____________________________________
Title:_________________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:____________________________________
Title:_________________________________
<PAGE>
Exhibit 4.3
EMCOR GROUP, INC.
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
Form of Senior Subordinated Indenture
Dated as of ________ __, 199_
<PAGE>
CROSS REFERENCE SHEET*
---------------
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of ________ __, 199_ between EMCOR GROUP, INC. and State Street Bank and Trust
Company, Trustee:
<TABLE>
<S> <C>
Section of the Act..................................................... Section of Indenture
310(a)(1), (2) and (5)................................................. 6.9
310(a)(3) and (4)...................................................... Inapplicable
310(b)................................................................. 6.8 and 6.10(a), (b) and (d)
310(c)................................................................. Inapplicable
311(a)................................................................. 6.13
311(b)................................................................. 6.13
311(c)................................................................. Inapplicable
312(a)................................................................. 4.1 and 4.2(a)
312(b)................................................................. 4.2(a) and (b)(i) and (ii)
312(c)................................................................. 4.2(c)
313(a)................................................................. 4.4(a)(i), (ii), (iii), (iv), (v), (vi)
and (vii)
313(a)(5).............................................................. Inapplicable
313(b)(1).............................................................. Inapplicable
313(b)(2).............................................................. 4.4(b)
313(c)................................................................. 4.4(c)
313(d)................................................................. 4.4(d)
314(a)................................................................. 4.3
314(b)................................................................. Inapplicable
314(c)(1) and (2)...................................................... 11.5
314(c)(3).............................................................. Inapplicable
314(d)................................................................. Inapplicable
314(e)................................................................. 11.5
314(f)................................................................. Inapplicable
315(a), (c) and (d).................................................... 6.1
315(b)................................................................. 5.8
315(e)................................................................. 5.9
316(a)(1).............................................................. 5.7
316(a)(2).............................................................. Not required
316(a) (last sentence)................................................. 7.4
316(b)................................................................. 5.4
317(a)................................................................. 5.2
317(b)................................................................. 3.5(a)
318(a)................................................................. 11.7
</TABLE>
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* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
<TABLE>
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Affiliate ............................................................................................. 1
Authenticating Agent................................................................................... 2
Bankruptcy Code........................................................................................ 2
Board of Directors..................................................................................... 2
Board Resolution....................................................................................... 2
Business Day........................................................................................... 2
Commission............................................................................................. 2
Consolidated Net Tangible Assets....................................................................... 2
Corporate Trust Office................................................................................. 2
Depositary............................................................................................. 2
Dollars ............................................................................................. 2
Exchange Act........................................................................................... 2
Event of Default....................................................................................... 2
Global Security........................................................................................ 3
Holder ............................................................................................. 3
Holder of Securities................................................................................... 3
Securityholder......................................................................................... 3
Indebtedness........................................................................................... 3
Indenture ............................................................................................. 3
interest ............................................................................................. 3
Issuer ............................................................................................. 3
Issuer Order........................................................................................... 3
Officers' Certificate.................................................................................. 4
Opinion of Counsel..................................................................................... 4
original issue date.................................................................................... 4
original issue discount................................................................................ 4
Original Issue Discount Security....................................................................... 4
Outstanding............................................................................................ 4
Periodic Offering...................................................................................... 5
Person ............................................................................................. 5
Place of Payment....................................................................................... 5
principal ............................................................................................. 5
principal amount....................................................................................... 5
record date............................................................................................ 5
Responsible Officer.................................................................................... 5
Restricted Subsidiary.................................................................................. 5
Securities Act......................................................................................... 5
Security ............................................................................................. 5
Securities............................................................................................. 5
Senior Indebtedness.................................................................................... 5
Senior Subordinated Indebtedness....................................................................... 6
Subordinated Indebtedness.............................................................................. 6
Significant Subsidiary................................................................................. 6
Subsidiary............................................................................................. 6
Trust Indenture Act of 1939............................................................................ 6
Trustee ............................................................................................. 6
Unrestricted Subsidiary................................................................................ 6
U.S. Government Obligations............................................................................ 6
vice president......................................................................................... 6
Yield to Maturity...................................................................................... 6
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
ARTICLE TWO
SECURITIES.................................................. 7
SECTION 2.1 Forms Generally.................................................................... 7
SECTION 2.2 Form of Trustee's Certificate of Authentication.................................... 7
SECTION 2.3 Amount Unlimited Issuable in Series................................................ 8
SECTION 2.4 Authentication and Delivery of Securities.......................................... 9
SECTION 2.5 Execution of Securities............................................................ 12
SECTION 2.6 Certificate of Authentication...................................................... 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.......................... 12
SECTION 2.8 Registration, Transfer and Exchange................................................ 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.......................... 14
SECTION 2.10 Cancellation of Securities; Disposition Thereof.................................... 15
SECTION 2.11 Temporary Securities............................................................... 15
SECTION 2.12 CUSIP Numbers...................................................................... 16
ARTICLE THREE
COVENANTS OF THE ISSUER........................................... 16
SECTION 3.1 Payment of Principal and Interest.................................................. 16
SECTION 3.2 Offices for Notices and Payments, etc.............................................. 16
SECTION 3.3 No Interest Extension.............................................................. 16
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office................................. 16
SECTION 3.5 Provision as to Paying Agent....................................................... 16
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE............................................ 17
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders.................................................................. 17
SECTION 4.2 Preservation and Disclosure of Securityholders Lists............................... 17
SECTION 4.3 Reports by the Issuer.............................................................. 18
SECTION 4.4 Reports by the Trustee............................................................. 19
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT............................................. 19
SECTION 5.1 Events of Default.................................................................. 19
SECTION 5.2 Payment of Securities on Default; Suit Therefor.................................... 21
SECTION 5.3 Application of Moneys Collected by Trustee......................................... 22
SECTION 5.4 Proceedings by Securityholders..................................................... 23
SECTION 5.5 Proceedings by Trustee............................................................. 23
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders........ 24
SECTION 5.8 Notice of Defaults................................................................. 24
SECTION 5.9 Undertaking to Pay Costs........................................................... 24
ARTICLE SIX
CONCERNING THE TRUSTEE............................................ 25
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default....... 25
SECTION 6.2 Certain Rights of the Trustee...................................................... 26
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof.................................................. 27
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc........................... 27
SECTION 6.5 Moneys Held by Trustee............................................................. 27
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim.................... 27
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc............................. 27
SECTION 6.8 Qualification of Trustee; Conflicting Interests.................................... 28
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different Trustees for
Different Series................................................................. 28
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.......................... 28
SECTION 6.11 Acceptance of Appointment by Successor Trustee..................................... 29
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee............. 30
SECTION 6.13 Preferential Collection of Claims Against the Issuer............................... 30
SECTION 6.14 Appointment of Authenticating Agent................................................ 30
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS........................................ 31
SECTION 7.1 Evidence of Action Taken by Securityholders........................................ 31
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities..................... 31
SECTION 7.3 Holders to be Treated as Owners.................................................... 32
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.................................. 32
SECTION 7.5 Right of Revocation of Action Taken................................................ 32
SECTION 7.6 Record Date for Consents and Waivers............................................... 33
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES........................................... 33
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders......................... 33
SECTION 8.2 Supplemental Indentures with Consent of Securityholders............................ 34
SECTION 8.3 Effect of Supplemental Indenture................................................... 35
SECTION 8.4 Documents to Be Given to Trustee................................................... 35
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures....................... 36
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION...................... 36
SECTION 9.2 Successor Corporation to be Substituted............................................ 36
SECTION 9.3 Opinion of Counsel to be Given Trustee............................................. 37
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS.................................... 37
SECTION 10.1 Satisfaction and Discharge of Indenture............................................ 37
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities................ 39
SECTION 10.3 Repayment of Moneys Held by Paying Agent........................................... 39
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years............................................................................ 39
SECTION 10.5 Indemnity for U.................................................................... 39
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS........................................... 39
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability................................................. 39
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities....................................................................... 40
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture................................ 40
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities................... 40
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained
Therein.......................................................................... 40
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.................................... 41
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939............ 41
SECTION 11.8 GOVERNING LAW...................................................................... 41
SECTION 11.9 Counterparts....................................................................... 42
SECTION 11.10 Effect of Headings................................................................. 42
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS.................................. 42
SECTION 12.1 Applicability of Article........................................................... 42
SECTION 12.2 Notice of Redemption; Partial Redemptions.......................................... 42
SECTION 12.3 Payment of Securities Called for Redemption........................................ 43
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption....................................................................... 43
SECTION 12.5 Mandatory and Optional Sinking Funds............................................... 43
ARTICLE THIRTEEN
SUBORDINATION................................................ 45
SECTION 13.1 Securities Subordinated to Senior Indebtedness..................................... 45
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence as to
Ownership of Senior Indebtedness................................................. 47
SECTION 13.3 Payment Permitted If No Default.................................................... 48
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness............................... 48
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.................................. 48
SECTION 13.6 Trustee to Effectuate Subordination................................................ 49
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness................................. 49
SECTION 13.8 Article Applicable to Paying Agents................................................ 49
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the Issuer or
Holders of Senior Indebtedness................................................... 49
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness........................... 49
</TABLE>
-iv-
<PAGE>
FORM OF SENIOR SUBORDINATED INDENTURE
FORM OF SENIOR SUBORDINATED INDENTURE, dated as of __________ __, 199_
between EMCOR GROUP, INC., a Delaware corporation (the "Issuer"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured senior subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture; and
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE, in:
consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as otherwise
expressly provided herein or in any indenture supplemental hereto or unless the
context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted on the date of this
Indenture.
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. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of ____________ __, 199_.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE>
2
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code ss.ss. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee of a series of
Securities at which the trust created by this Indenture shall, at any particular
time, be principally administered, which office is, at the date as of which this
Indenture is dated, located at Goodwin Square, 225 Asylum Street, Hartford, CT
06103.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
<PAGE>
3
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person, means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if
any, on indebtedness for money borrowed of such Person,
indebtedness of such Person evidenced by bonds, notes, debentures
or similar obligations, and any guaranty by such Person of any
indebtedness for money borrowed or indebtedness evidenced by
bonds, notes, debentures or similar obligations of any other
Person, whether any such indebtedness or guaranty is outstanding
on the date of this Indenture or is thereafter created, assumed or
incurred, (ii) obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or
similar credit transaction; (iii) the principal of and premium, if
any, and interest, if any, on indebtedness incurred, assumed or
guaranteed by such Person in connection with the acquisition by it
or any of its subsidiaries of any other businesses, properties or
other assets; (iv) lease obligations which such Person capitalizes
in accordance with Statement of Financial Accounting Standards No.
13 promulgated by the Financial Accounting Standards Board or such
other generally accepted accounting principles as may be from time
to time in effect; (v) any indebtedness of such Person
representing the balance deferred and unpaid of the purchase price
of any property or interest therein (except any such balance that
constitutes an accrued expense or trade payable) and any guaranty,
endorsement or other contingent obligation of such Person in
respect of any indebtedness of another that is outstanding on the
date of this Indenture or is thereafter created, assumed or
incurred by such Person; and (vi) obligations of such Person under
interest rate, commodity or currency swaps, caps, collars, options
and similar arrangements if and to the extent that any of the
foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with
generally accepted accounting principles;
(b) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as
Indebtedness in clause (a) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether at
stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means EMCOR Group, Inc., a Delaware corporation, and, subject
to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer, and delivered to the Trustee.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the
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4
statements provided for in Section 11.5 if and to the extent required by the
provisions of such Section 11.5. One of the officers signing an Officers'
Certificate given pursuant to Section 4.3 shall be the principal executive,
financial or accounting officer of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held
in trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that, if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
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5
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee of a
series of Securities, means any officer of the Trustee with direct
responsibility for the administration of the trust created by this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other
than an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was
an Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be a
Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding Indebtedness
of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at
any time (other than the Indebtedness evidenced by the Securities of any series)
except (a) any Indebtedness as to which, by the terms of the instrument creating
or evidencing such Indebtedness, it is provided that such Indebtedness is not
senior or prior in right of payment to the Securities or is pari passu or
subordinate by its terms in right of payment to the Securities, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness of
the Issuer to a wholly-owned Subsidiary of the Issuer, (d) interest accruing
after the filing of a petition initiating any proceeding referred to in Sections
5.1(e) and 5.1(f) unless such interest is an allowed claim enforceable against
the Issuer in a proceeding under federal or state bankruptcy laws and (e) trade
payables.
"Senior Subordinated Indebtedness" means the Securities and any other
Indebtedness of the Issuer that ranks pari passu with the Securities. Any
Indebtedness of the Issuer that is subordinate or junior by its terms in right
of payment to any other Indebtedness of the Issuer shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding specifically provides that
such Indebtedness (i) is to rank pari passu with other Senior Subordinated
Indebtedness and (ii) is not subordinated by its terms to any Indebtedness of
the Issuer which is not Senior Indebtedness.
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6
"Subordinated Indebtedness" means the Securities, any other Senior
Subordinated Indebtedness and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of the Issuer within the meaning of Rule 1.02(w) of Regulation S-X
promulgated by the Commission as in effect on the date of this Indenture.
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person, or any
one or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer
acquired or organized after the date hereof, provided, however, that such
Subsidiary of the Issuer shall not be a successor, directly or indirectly, to
any Restricted Subsidiary, and (b) any Subsidiary of the Issuer substantially
all the assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the Issuer of the character described in clause (a) of this
paragraph, unless and until such Subsidiary shall have been designated to be a
Restricted Subsidiary pursuant to clause (b) of the definition of "Restricted
Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or
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7
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
SECTION 2.3 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 subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall be established
in or pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
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8
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record
shall be taken for the determination of Holders to whom any such interest
is payable or the method by which such rate or rates or date or dates shall
be determined or both;
(5) the place or places where and the manner in which the principal of,
premium, if any, and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or agency
for the Securities of the series maintained by the Issuer pursuant to
Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or method
of payment therefor if other than in cash and any terms and conditions upon
which and the manner in which (if different from the provisions of Article
Twelve) Securities of the series may be so redeemed, purchased or repaid,
in whole or in part pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which the price or prices
(or the method by which such price or prices shall be determined or both)
at which, the form or method of payment therefor if other than in cash and
any terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or remedies
or any deleted, modified or additional covenants with respect to the
Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
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9
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrete, if any, and the date or dates from or to which or
period or periods during which such original issue discount shall accrete
at such rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities
of such series shall be payable;
(17) if other than State Street Bank and Trust Company is to act as
Trustee for the Securities of such series, the name and Corporate Trust
Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined
with reference to an index, the manner in which such amounts shall be
determined;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) 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 by or pursuant
to the Board Resolution or Officers' Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures
and agreed to by the Trustee, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by
the Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time
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10
by an Issuer Order, (c) the maturity date or dates, original issue date or
dates, interest rate or rates, if any, and any other terms of Securities of
such series shall be determined by an Issuer Order or pursuant to such
procedures, (d) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued, any
separate request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a certification by
the Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuers, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been
duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of
an offering that is not underwritten, certain terms of the Securities
of such series have been established pursuant to a Board Resolution, an
Officers' Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the
Issuer and will have been established in conformity with the provisions
of this Indenture;
(c) when the Securities of such series have been executed by the
Issuer and the Securities of such series have been authenticated by the
Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they will
have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in accordance
with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of
such series will not contravene any provision of applicable law or the
articles of incorporation or bylaws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its Subsidiaries
that is material to the Issuer and its Subsidiaries, considered as one
enterprise, or, to such counsel's knowledge after the inquiry indicated
therein (which shall be reasonable), any judgment, order or decree of
any governmental agency or any court having jurisdiction over the
Issuer or any Subsidiary of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities,
except such as are specified and have been obtained and such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series
of Securities created by an indenture supplemental hereto, such Opinion of
Counsel shall also state that all laws and requirements with respect to the form
and execution by the Issuer of the supplemental indenture with respect to the
series of Securities have been complied with, the Issuer has corporate power to
execute and deliver any such supplemental indenture and has taken all
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11
necessary corporate action for those purposes and any such supplemental
indenture has been executed and delivered and constitutes the legal, valid and
binding obligation of the Issuer enforceable in accordance with its terms.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Delaware and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer, or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers 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 the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
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SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to the
Securities of any series, if not so established, in denominations of $1,000 and
any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if any,
and original issue date in authorized denominations for a like aggregate
principal amount.
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All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2.
The Issuer 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 of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer 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
shall no longer be represented by a Global Security or Securities. In such event
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
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14
(i to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
the Trustee or the Issuer or any such agent to indemnify and defend and to save
each of the Trustee and the Issuer and any such agent harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
<PAGE>
15
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Company. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, and an office or agency
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made
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16
and notice and demand may be served in respect of the Securities or of this
Indenture at the Corporate Trust Office. The Issuer hereby initially designates
the Corporate Trust Office for each such purpose and appoints the Trustee as
registrar and paying agent and as the agent upon whom notices and demands may be
served with respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for the
payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and
the Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the
principal of, premium, if any, or interest, if any, on the Securities when
the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the Securities,
set aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or
interest, if any, on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will,
on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
<PAGE>
17
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing, within
15 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or
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18
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe), if any, which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Issuer is not required to file information, documents or reports pursuant
to either of such Sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a debt security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series
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19
are listed and also with the Commission. The Issuer agrees to promptly notify
the Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or otherwise), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Securities of such series, as and when such
obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given by certified or registered mail to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction shall
enter an order for relief with respect to the Issuer or any of its Significant
Subsidiaries under any applicable bankruptcy, insolvency or other similar law of
the United States of America, any state thereof or the District of Columbia, or
without the consent of the Issuer a court having jurisdiction shall enter a
judgment, order or decree adjudging the Issuer or any of its Significant
Subsidiaries bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer or any of its Significant Subsidiaries under any applicable bankruptcy,
insolvency or other similar law of the United States of America, any state
thereof or the District of Columbia, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 60 consecutive days;
or
(f) the Issuer or any of its Significant Subsidiaries shall institute
proceedings for entry of an order for relief with respect to the Issuer or any
of its Significant Subsidiaries under any applicable bankruptcy, insolvency or
other similar law of the United States of America, any state thereof or the
District of Columbia or for an adjudication of insolvency, or shall consent to
the institution of bankruptcy or insolvency proceedings against it, or shall
file a petition seeking, or seek or consent to reorganization, arrangement,
composition or relief under any applicable bankruptcy, insolvency or other
similar law of the United States of America, any state thereof or the District
of Columbia, or shall consent to the filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or of substantially all of its
property, or the Issuer or any of its Significant Subsidiaries shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the United States of
America, any state thereof or the District of Columbia; or
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20
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or any of its Significant
Subsidiaries or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Issuer or any of its Significant Subsidiaries, whether
such Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration of
any applicable grace periods and the presentation of any debt instruments, if
required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $25,000,000, without each such default and acceleration having been
rescinded or annulled within a period of 20 days after there shall have been
given by certified or registered mail to the Issuer by the Trustee, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such default
and acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the Securities
of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. Notwithstanding the previous sentence, no
waiver shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default with
respect to any covenant or provision which cannot be modified or amended without
the consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default or
other event.
If any Event of Default with respect to the Issuer specified in Section
5.1(e) or 5.1(f) occurs, all unpaid principal amount (or, if the Securities of
any series then Outstanding are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of each such series)
and accrued interest on all Securities of each series then Outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act by the Trustee or any Securityholder.
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21
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 30 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, 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 and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses or otherwise
pursuant to Section 6.6, including counsel fees and expenses incurred by it up
to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
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22
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other property which the Holders of the
Securities of such series may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee pursuant to Section 6.6 except as a result of its negligence
or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities of
such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the rate borne by the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest, if any, without
preference or priority of principal over interest or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders
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23
of not less than 25% in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, it being understood and intended, and being
expressly covenanted by the Holder of every Security of such series with every
other Holder and the Trustee, that no one or more Holders of Securities of such
series shall have any right in any manner whatever by virtue of or by availing
of any provision of this Indenture or of the Securities to affect, disturb or
prejudice the rights of any other Holder of such Securities of such series, or
to obtain or seek to obtain priority over or preference as to any other such
Holder, or to enforce any right under this Indenture or the Securities, except
in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, the right of any Holder of any Security to receive payment of
the principal of, premium, if any, and interest, if any, on such Security, on or
after the respective due dates expressed in such Security, or to institute suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of such series; provided, however, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine upon advice of counsel that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors, its executive committee, or a trust
committee of directors or Responsible Officers or both shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of all of
the Securities of such series waive any past default or Event of Default
hereunder and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Securities of such series. Upon any such
waiver the Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 5.7, said
default or Event of Default shall for all purposes of the Securities and this
Indenture be deemed to have been cured and to be not continuing.
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24
SECTION 5.8 Notice of Defaults. The Trustee shall, within 30 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both, of the Trustee in good faith determines that
the withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. In case an Event of Default with respect to the Securities of
a series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but
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25
in the case of any such statements, certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.7 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such
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26
expenses or liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation
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27
or removal of the Trustee and shall not be subordinate to the payment of Senior
Indebtedness pursuant to Article Thirteen. Such additional indebtedness shall be
a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 5.1
or in connection with Article Five hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law. The provisions of this Section 6.6
shall survive the resignation or removal of the Trustee and the termination of
this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for any series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than State Street Bank and
Trust Company, the Issuer and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in
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duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any such Securityholder; or
(iii the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all
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29
or any applicable series shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request of the Issuer
or of the successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer fails
to give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the
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Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
(including the authenticating agency contemplated by this Indenture) of any
Authenticating Agent, shall continue to be the Authenticating Agent with respect
to all series of Securities for which it served as Authenticating Agent without
the execution or filing of any paper or any further act on the part of the
Trustee or such Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument
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or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder 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 or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are 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 Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days
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32
after such filing. Except as aforesaid, any such action taken by the Holder of
any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of the
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and any such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or waive
compliance with any such term, condition or provision, whether or not such
Holder remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series prior
to the date which is the 120th day after such record date, any such waiver or
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series) and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
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33
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the Trust Indenture Act of 1939, or under any similar federal statute
hereafter enacted, and to add to this Indenture such other provisions as may be
expressly permitted by the Trust Indenture Act of 1939, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act of 1939
as in effect at the date as of which this instrument was executed or any
corresponding provision provided for in any similar federal statute hereafter
enacted; or
(h) to evidence and provide for the acceptance of appointment hereunder
of a Trustee other than State Street Bank and Trust Company as Trustee for a
series of Securities 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 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer solely
in respect of, or add new covenants or Events of Default of the Issuer that
apply solely to, Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee
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may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
stated final maturity of the principal of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accretion of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Issuer thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy in each case pursuant to Article Five, or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under this
Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may at its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all
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the terms and conditions of any such supplemental indenture shall be and shall
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia;
and (c) the due and punctual payment of the principal of and interest, if any,
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the Person (if other than the Issuer) formed by
such consolidation, or into which the Issuer shall have been merged, or by the
Person which shall have acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, 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, premium, if any, and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of
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the property and assets of the Issuer (including any such intervening
successor), the Issuer (including any such intervening successor) shall continue
to be liable on its obligations under this Indenture and the Securities to the
extent, but only to the extent, of liability to pay the principal of and
interest, if any, on the Securities at the time, places and rate prescribed in
this Indenture and the Securities. Such successor Person thereupon may cause to
be signed, and may issue either in its own name or in the name of the Issuer,
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Issuer and delivered to the Trustee; and, upon the order of
such successor Person instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and form (but not in
substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, shall receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption complies with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of,
premium, if any, and interest, if any, on all the Securities Outstanding (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (ii) the Issuer shall have delivered to the Trustee
for cancellation all Securities theretofore authenticated (other than Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9); and if, in any such case, the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer (including
all amounts payable to the Trustee pursuant to Section 6.6), then this Indenture
shall cease to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred,
and to compensate the Trustee for any services thereafter reasonably and
properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(b) If at any time (i) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
of any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (iii) in the case of any series of Securities
with respect to which the exact amount described in clause (B) below can be
determined at the time of making the deposit referred to in such clause (B), (A)
all the Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or by their terms are to become
due and payable
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37
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (B) the Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such series,
cash in an amount (other than moneys repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 10.4) or non-callable, non-prepayable
bonds, notes, bills or other similar obligations issued or guaranteed by the
United States government or any agency thereof the full and timely payment of
which are backed by the full faith and credit of the United States ("U.S.
Government Obligations"), maturing as to principal and interest, if any, at such
times and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and (2)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (B) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (iii) of this Section 10.1(b), as to (I) rights
of registration of transfer and exchange of Securities of such series, (II)
rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (III) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (IV) the
rights, obligations, duties and immunities of the Trustee hereunder, (V) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (VI) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(c) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (A) below can be determined at the time
of making the deposit referred to in such subparagraph (A), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (A) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (1) cash in an
amount, or (2) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (3) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
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38
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay (I) the principal of, premium, if any, and interest,
if any, on all Securities of such series on each date that such principal
or interest, if any, is due and payable, and (II) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound; and
(C) the Issuer has delivered to the Trustee an Opinion of Counsel based
on the fact that (1) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (2), since the date
hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of, premium, if any, or interest,
if any, on any Security of any series and not applied but remaining unclaimed
for two years after the date upon which such principal, premium, if any, or
interest, if any, shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent and the Holder of the
Securities of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
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 10.1 or the principal or interest received in respect of such
obligations.
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39
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Senior
Indebtedness and the Holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
EMCOR Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, Connecticut 06851.
Any notice, direction, request or demand by the Issuer or any Holder of
Securities to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to State Street Bank and Trust
Company, Goodwin Square, 225 Asylum Street, Hartford, CT 06103, attention:
Corporate Trust Administration (EMCOR Group, Inc. [specify series of
Securities]).
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an
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40
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, on information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows 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, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows 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, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, premium,
if any, or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included herein by any of Sections 310 to 317,
inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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41
SECTION 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest, if
any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee within 10 Business Days after the Issuer gives written notice to the
Trustee that such redemption is to occur, shall select, in such manner as it
shall
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deem appropriate and fair, Securities of such series to be redeemed. Notice of
the redemption shall be given only after such selection has been made.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or
<PAGE>
43
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer
and delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so, credited)
made pursuant to this Section 12.5, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on
the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the expense
of the Issuer (if the Issuer shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
<PAGE>
44
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, and subject to Article Thirteen, any moneys in the sinking fund for
such series at the time when any such default or Event of Default known to a
Responsible Officer of the Trustee shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Article Five or the default cured on or before the 60th
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a) The
Issuer covenants and agrees, and each Holder of Securities of each series, by
his acceptance thereof, likewise covenants and agrees, that anything in this
Indenture or the Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each series is subordinate and
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness but the Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Issuer. The Securities shall rank senior to all existing and future Indebtedness
of the Issuer that is neither Senior Indebtedness nor Senior Subordinated
Indebtedness and only Indebtedness of the Issuer that is Senior Indebtedness
shall rank senior to the Securities in accordance with the provisions set forth
herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, or
(ii) any other default shall occur with respect to Senior Indebtedness and the
maturity of such Senior Indebtedness has been accelerated in accordance with its
terms, then, upon written notice of such default to the Issuer and the Trustee
by the holders of Senior Indebtedness or any trustee therefor, unless and until,
in either case, the default has been cured or waived, or has ceased to exist, or
any such acceleration has been rescinded or such Senior Indebtedness has been
paid in full, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest, if any, on any of the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the Issuer (or cash
in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of
this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action by
the Issuer in accordance with the following provisions of this paragraph (c),
the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment
Blockage Period") commencing on the date of receipt of such Payment Notice and
ending on the earlier of (i) the date, if any, on which the holders of such
Senior Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the
<PAGE>
45
date of receipt of such Payment Notice. Notwithstanding the provisions described
in the immediately preceding sentence, the Issuer may resume payments on the
Securities following such Payment Blockage Period. Any number of Payment Notices
may be given; provided, however, that (i) not more than one Payment Notice shall
be given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of such Payment Notice or the commencement of such Payment
Blockage Period (whether or not such event of default is on the same issue of
Senior Indebtedness) shall be made the basis for the commencement of any other
Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory authority
having jurisdiction, and such decree or order remains in effect for more than 60
days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Issuer under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect (including without limitation the Bankruptcy Code),
and is not dismissed within 60 days after such filing; or (ii) the Issuer (A)
commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or (C)
fails generally to, or cannot, pay its debts generally as they become due or (D)
takes any corporate action to authorize or effect any of the foregoing; or (iii)
any Subsidiary of the Issuer takes, suffers or permits to exist any of the
events or conditions referred to in the foregoing clause (i) or (ii), then all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall have been paid in full. In
the event of any such proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness, the Holders of the Securities, together with the
holders of any obligations of the Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the Issuer
the amounts at the time due and owing on account of unpaid principal of and
interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of
any character, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by the
Trustee or any Holder in contravention of any of the terms hereof, such payment
or distribution of securities shall be received in trust for the benefit of and
shall be paid over or delivered and transferred to the holders of the Senior
Indebtedness then outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in
full. In the event of the failure of the Trustee or any Holder to
<PAGE>
46
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer or any
Holder of Securities. Nothing contained herein shall impair, as between the
Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on
a parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative). If 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 distributions pursuant to this Article Thirteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, as to the extent to which such Person is entitled to participate in such
payment or distribution, and to other facts pertinent to the rights of such
Person under this Article Thirteen, 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>
47
SECTION 13.3 Payment Permitted If No Default. Nothing contained in this
Article Thirteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent (a) the Issuer at any time, except during the pendency of any
default with respect to Senior Indebtedness described in Section 13.1(b) or
Section 13.1(c) or of any of the events described in Section 13.1(d), from
making payments of the principal of or interest, if any, on the Securities, or
(b) the application by the Trustee or any paying agent of any moneys deposited
with it hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such paying agent,
as the case may be, did not have the written notice provided for in Section 13.5
of any event prohibiting the making of such deposit, or if, at the time of such
deposit (whether or not in trust) by the Issuer with the Trustee or paying agent
(other than the Issuer) such payment would not have been prohibited by the
provisions of this Article Thirteen, and the Trustee or any paying agent shall
not be affected by any notice to the contrary received by it on or after such
date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or under any Senior Indebtedness,
other than any Senior Indebtedness as to which the provisions of this Section
13.4 shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such Senior
Indebtedness, shall not be deemed a default under Section 13.1 hereof if (i) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, or (B) if a judgment that is subject to further review or appeal has
been issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses (b)
and (c) of Section 13.1 has happened unless and until the Trustee shall have
received an Officers' Certificate to the effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or the representatives,
of Senior Indebtedness who shall have been certified by the Issuer or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice provided
for in this Section 13.5 at least three Business Days preceding the date upon
which by the terms hereof any moneys become payable for any purpose (including,
without limitation, the payment of either the principal of or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it within
three Business Days preceding such date. The Issuer shall give prompt written
notice to the Trustee and to each paying agent of any facts that would prohibit
any payment of moneys to or by the Trustee or any paying agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the
<PAGE>
48
Trustee of any of its rights as such holder. Nothing in this Article Thirteen
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "Trustee" as used in this Article
Thirteen shall in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if the paying agent were named in this
Article Thirteen in addition to or in place of the Trustee; provided, however,
that Sections 13.5 and 13.7 shall not apply to the Issuer if it acts as paying
agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuer or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Indebtedness, may at any time or from time to time and in their absolute
direction, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under such Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Issuer, the Trustee or the
Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Issuer. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
<PAGE>
49
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the date first written above.
EMCOR GROUP, INC.
By:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
Title:
<PAGE>
Exhibit 4.4
EMCOR GROUP, INC.
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
Form of Subordinated Indenture
Dated as of _________ __, 199_
<PAGE>
CROSS REFERENCE SHEET*
---------------
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of ________ __, 199_ between EMCOR GROUP, INC. and State Street Bank and Trust
Company, Trustee:
<TABLE>
<S> <C>
Section of the Act..................................................... Section of Indenture
310(a)(1), (2) and (5)................................................. 6.9
310(a)(3) and (4)...................................................... Inapplicable
310(b)................................................................. 6.8 and 6.10(a), (b) and (d)
310(c)................................................................. Inapplicable
311(a)................................................................. 6.13
311(b)................................................................. 6.13
311(c)................................................................. Inapplicable
312(a)................................................................. 4.1 and 4.2(a)
312(b)................................................................. 4.2(a) and (b)(i) and (ii)
312(c)................................................................. 4.2(c)
313(a)................................................................. 4.4(a)(i), (ii), (iii), (iv), (v), (vi)
313(a)(5).............................................................. Inapplicable
313(b)(1).............................................................. Inapplicable
313(b)(2).............................................................. 4.4(b)
313(c)................................................................. 4.4(c)
313(d)................................................................. 4.4(d)
314(a)................................................................. 4.3
314(b)................................................................. Inapplicable
314(c)(1) and (2)...................................................... 11.5
314(c)(3).............................................................. Inapplicable
314(d)................................................................. Inapplicable
314(e)................................................................. 11.5
314(f)................................................................. Inapplicable
315(a), (c) and (d).................................................... 6.1
315(b)................................................................. 5.8
315(e)................................................................. 5.9
316(a)(1).............................................................. 5.7
316(a)(2).............................................................. Not required
316(a) (last sentence)................................................. 7.4
316(b)................................................................. 5.4
317(a)................................................................. 5.2
317(b)................................................................. 3.5(a)
318(a)................................................................. 11.7
</TABLE>
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* This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
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Affiliate ............................................................................................. 2
Authenticating Agent................................................................................... 2
Board of Directors..................................................................................... 2
Board Resolution....................................................................................... 2
Business Day........................................................................................... 2
Commission............................................................................................. 2
Consolidated Net Tangible Assets....................................................................... 2
Corporate Trust Office................................................................................. 2
Depositary............................................................................................. 2
Dollars ............................................................................................. 2
Exchange Act........................................................................................... 2
Event of Default....................................................................................... 3
Global Security........................................................................................ 3
Holder ............................................................................................. 3
Holder of Securities................................................................................... 3
Securityholder......................................................................................... 3
Indebtedness........................................................................................... 3
Indenture ............................................................................................. 3
interest ............................................................................................. 3
Issuer ............................................................................................. 3
Issuer Order........................................................................................... 4
Officers' Certificate.................................................................................. 4
Opinion of Counsel..................................................................................... 4
original issue date.................................................................................... 4
original issue discount................................................................................ 4
Original Issue Discount Security....................................................................... 4
Outstanding............................................................................................ 4
Periodic Offering...................................................................................... 5
Person ............................................................................................. 5
Place of Payment....................................................................................... 5
principal ............................................................................................. 5
principal amount....................................................................................... 5
record date............................................................................................ 5
Responsible Officer.................................................................................... 5
Restricted Subsidiary.................................................................................. 5
Securities Act......................................................................................... 5
Security ............................................................................................. 5
Securities............................................................................................. 5
Senior Indebtedness.................................................................................... 5
Significant Subsidiary................................................................................. 6
Subsidiary............................................................................................. 6
Trust Indenture Act of 1939............................................................................ 6
Trustee ............................................................................................. 6
Unrestricted Subsidiary................................................................................ 6
U.S. Government Obligations............................................................................ 6
vice president......................................................................................... 6
Yield to Maturity...................................................................................... 6
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ARTICLE TWO
SECURITIES.................................................. 6
SECTION 2.1 Forms Generally.................................................................... 6
SECTION 2.2 Form of Trustee's Certificate of Authentication.................................... 7
SECTION 2.3 Amount Unlimited Issuable in Series................................................ 7
SECTION 2.4 Authentication and Delivery of Securities.......................................... 9
SECTION 2.5 Execution of Securities............................................................ 11
SECTION 2.6 Certificate of Authentication...................................................... 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.......................... 12
SECTION 2.8 Registration, Transfer and Exchange................................................ 12
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.......................... 14
SECTION 2.10 Cancellation of Securities; Disposition Thereof.................................... 15
SECTION 2.11 Temporary Securities............................................................... 15
SECTION 2.12 CUSIP Numbers...................................................................... 15
ARTICLE THREE
COVENANTS OF THE ISSUER........................................... 16
SECTION 3.1 Payment of Principal and Interest.................................................. 16
SECTION 3.2 Offices for Notices and Payments, etc.............................................. 16
SECTION 3.3 No Interest Extension.............................................................. 16
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office................................. 16
SECTION 3.5 Provision as to Paying Agent....................................................... 16
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE............................................ 17
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders................................................................. 17
SECTION 4.2 Preservation and Disclosure of Securityholders Lists............................... 17
SECTION 4.3 Reports by the Issuer.............................................................. 18
SECTION 4.4 Reports by the Trustee............................................................. 19
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT............................................. 19
SECTION 5.1 Events of Default.................................................................. 19
SECTION 5.2 Payment of Securities on Default; Suit Therefor.................................... 21
SECTION 5.3 Application of Moneys Collected by Trustee......................................... 22
SECTION 5.4 Proceedings by Securityholders..................................................... 23
SECTION 5.5 Proceedings by Trustee............................................................. 23
SECTION 5.6 Remedies Cumulative and Continuing................................................. 23
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders........ 24
SECTION 5.8 Notice of Defaults................................................................. 24
SECTION 5.9 Undertaking to Pay Costs........................................................... 24
ARTICLE SIX
CONCERNING THE TRUSTEE............................................ 25
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default....... 25
SECTION 6.2 Certain Rights of the Trustee...................................................... 25
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SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof................................................. 26
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc........................... 27
SECTION 6.5 Moneys Held by Trustee............................................................. 27
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim.................... 27
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc............................. 27
SECTION 6.8 Qualification of Trustee; Conflicting Interests.................................... 27
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different Trustees for
Different Series................................................................ 28
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.......................... 28
SECTION 6.11 Acceptance of Appointment by Successor Trustee..................................... 29
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee............. 30
SECTION 6.13 Preferential Collection of Claims Against the Issuer............................... 30
SECTION 6.14 Appointment of Authenticating Agent................................................ 30
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS........................................ 31
SECTION 7.1 Evidence of Action Taken by Securityholders........................................ 31
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities..................... 31
SECTION 7.3 Holders to be Treated as Owners.................................................... 32
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding.................................. 32
SECTION 7.5 Right of Revocation of Action Taken................................................ 32
SECTION 7.6 Record Date for Consents and Waivers............................................... 32
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES............................................... 33
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders......................... 33
SECTION 8.2 Supplemental Indentures with Consent of Securityholders............................ 34
SECTION 8.3 Effect of Supplemental Indenture................................................... 35
SECTION 8.4 Documents to Be Given to Trustee................................................... 35
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures....................... 35
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION...................... 36
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms..................................... 36
SECTION 9.2 Successor Corporation to be Substituted............................................ 36
SECTION 9.3 Opinion of Counsel to be Given Trustee............................................. 37
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS.................................... 37
SECTION 10.1 Satisfaction and Discharge of Indenture............................................ 37
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities................ 39
SECTION 10.3 Repayment of Moneys Held by Paying Agent........................................... 39
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two
Years........................................................................... 39
SECTION 10.5 Indemnity for U.S. Government Obligations.......................................... 39
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ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS........................................... 39
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability................................................ 39
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of
Securities...................................................................... 40
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture................................ 40
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities................... 40
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained
Therein......................................................................... 40
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays.................................... 41
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939............ 41
SECTION 11.8 GOVERNING LAW...................................................................... 41
SECTION 11.9 Counterparts....................................................................... 41
SECTION 11.10 Effect of Headings................................................................. 41
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS.................................. 42
SECTION 12.1 Applicability of Article........................................................... 42
SECTION 12.2 Notice of Redemption; Partial Redemptions.......................................... 42
SECTION 12.3 Payment of Securities Called for Redemption........................................ 43
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for
Redemption...................................................................... 43
SECTION 12.5 Mandatory and Optional Sinking Funds............................................... 43
ARTICLE THIRTEEN
SUBORDINATION................................................ 45
SECTION 13.1 Securities Subordinated to Senior Indebtedness..................................... 45
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence as to
Ownership of Senior Indebtedness................................................ 47
SECTION 13.3 Payment Permitted If No Default.................................................... 47
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness............................... 48
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.................................. 48
SECTION 13.6 Trustee to Effectuate Subordination................................................ 48
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness................................. 48
SECTION 13.8 Article Applicable to Paying Agents................................................ 49
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the Issuer or
Holders of Senior Indebtedness.................................................. 49
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness........................... 49
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<PAGE>
FORM OF SUBORDINATED INDENTURE
FORM OF SUBORDINATED INDENTURE, dated as of __________ __, 199_ between
EMCOR GROUP, INC., a Delaware corporation (the "Issuer"), and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture; and
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided herein or
in any indenture supplemental hereto or unless the context otherwise clearly
requires). All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933, as amended (the "Securities Act"), shall have the
meanings assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture (except as otherwise
expressly provided herein or in any indenture supplemental hereto or unless the
context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted on the date of this
Indenture.
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. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz. as
of ____________ __, 199_.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
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2
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
Stated Code ss.ss. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect, and
delivered to the Trustee.
"Business Day" means, with respect to any Security, unless otherwise
specified in a Board Resolution and an Officers' Certificate with respect to a
particular series of Securities, a day that (a) in the Place of Payment (or in
any of the Places of Payment, if more than one) in which amounts are payable, as
specified in the form of such Security, and (b) in the city in which the
Corporate Trust Office is located, is not a day on which banking institutions
are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee of a series of
Securities at which the trust created by this Indenture shall, at any particular
time, be principally administered, which office is, at the date as of which this
Indenture is dated, located at Goodwin Square, 225 Asylum Street, Hartford, CT
06103.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Dollars" and the sign "$" means the coin and currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
<PAGE>
3
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" with respect to any Person, means, without duplication:
(a) (i) the principal of and premium, if any, and interest, if any, on
indebtedness for money borrowed of such Person, indebtedness of such
Person evidenced by bonds, notes, debentures or similar obligations,
and any guaranty by such Person of any indebtedness for money borrowed
or indebtedness evidenced by bonds, notes, debentures or similar
obligations of any other Person, whether any such indebtedness or
guaranty is outstanding on the date of this Indenture or is thereafter
created, assumed or incurred, (ii) obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction; (iii) the principal of and
premium, if any, and interest, if any, on indebtedness incurred,
assumed or guaranteed by such Person in connection with the acquisition
by it or any of its subsidiaries of any other businesses, properties or
other assets; (iv) lease obligations which such Person capitalized in
accordance with Statement of Financial Accounting Standards No. 13
promulgated by the Financial Accounting Standards Board or such other
generally accepted accounting principles as may be from time to time in
effect; (v) any indebtedness of such Person representing the balance
deferred and unpaid of the purchase price of any property or interest
therein (except any such balance that constitutes an accrued expense or
trade payable) and any guaranty, endorsement or other contingent
obligation of such Person in respect of any indebtedness of another
that is outstanding on the date of this Indenture or is thereafter
created, assumed or incurred by such Person; and (vi) obligations of
such Person under interest rate, commodity or currency swaps, caps,
collars, options and similar arrangements if and to the extent that any
of the foregoing indebtedness in (i) through (vi) would appear as a
liability on the balance sheet of such Person in accordance with
generally accepted accounting principles; and
(b) any amendments, modifications, refundings, renewals or extensions
of any indebtedness or obligation described as Indebtedness in clause
(a) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
"interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether at
stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means EMCOR Group, Inc., a Delaware corporation, and, subject
to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer, and delivered to the Trustee.
<PAGE>
4
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be reasonably satisfactory to the
Trustee. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required by the provisions of such Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"original issue discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth in the case of an Original Issue Discount Security on the face of such
Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Article Five.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions
thereof, for the payment or redemption of which moneys or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated and held
in trust by the Issuer for the Holders of such Securities (if the Issuer
shall act as its own paying agent), provided that, if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Article Five.
<PAGE>
5
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
"principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, if any, upon any redemption at
the option of the Issuer, upon any purchase or exchange at the option of the
Issuer or the holder of such debt security and upon any acceleration of the
maturity of such debt security).
"principal amount" of a debt security, including any Security, means
the principal amount as set forth on the face of such debt security.
"record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee of a
series of Securities, means any officer of the Trustee with direct
responsibility for the administration of the trust created by this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary of the Issuer other
than an Unrestricted Subsidiary, and (b) any Subsidiary of the Issuer which was
an Unrestricted Subsidiary but which, subsequent to the date hereof, is
designated by the Issuer (by Board Resolution) to be a Restricted Subsidiary;
provided, however, that the Issuer may not designate any such Subsidiary to be a
Restricted Subsidiary if the Issuer would thereby breach any covenant or
agreement herein contained (on the assumptions that any outstanding Indebtedness
of such Subsidiary was incurred at the time of such designation).
"Securities Act" shall have the meaning set forth in Section 1.1.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture or, as the case may be, Securities that have been
authenticated and delivered pursuant to this Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at
any time (other than the Indebtedness evidenced by the Securities of any series)
except (a) any Indebtedness as to which, by the terms of the instrument creating
or evidencing such Indebtedness, it is provided that such Indebtedness is not
senior or prior in right of payment to the Securities or is pari passu or
subordinate by its terms in right of payment to the Securities, (b) renewals,
extensions and modifications of any such Indebtedness, (c) any Indebtedness of
the Issuer to a wholly-owned Subsidiary of the Issuer, (d) interest accruing
after the filing of a petition initiating any proceeding referred to in Sections
5.1(e) and 5.1(f) unless such interest is an allowed claim enforceable against
the Issuer in a proceeding under federal or state bankruptcy laws and (e) trade
payables.
<PAGE>
6
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of the Issuer within the meaning of Rule 1.02(w) of Regulation S-X
promulgated by the Commission as in effect on the date of this Indenture.
"Subsidiary" of any specified Person means any corporation of which
such Person, or such Person and one or more Subsidiaries of such Person, or any
one or more Subsidiaries of such Person, directly or indirectly own voting
securities entitling any one or more of such Persons and its Subsidiaries to
elect a majority of the directors, either at all times or, so long as there is
no default or contingency which permits the holders of any other class or
classes of securities to vote for the election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Issuer
acquired or organized after the date hereof, provided, however, that such
Subsidiary of the Issuer shall not be a successor, directly or indirectly, to
any Restricted Subsidiary, and (b) any Subsidiary of the Issuer substantially
all the assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the Issuer of the character described in clause (a) of this
paragraph, unless and until such Subsidiary shall have been designated to be a
Restricted Subsidiary pursuant to clause (b) of the definition of "Restricted
Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
"vice president," when used with respect to the Issuer or the Trustee,
means any vice president, regardless of whether designated by a number or a word
or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
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7
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By______________________________
as Authenticating Agent
By______________________________
Authorized Signatory
SECTION 2.3 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 subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness of the Issuer. There shall be established
in or pursuant to one or more Board Resolutions (and, to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officers'
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
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8
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, on which any such interest shall be payable and on which a record
shall be taken for the determination of Holders to whom any such interest
is payable or the method by which such rate or rates or date or dates shall
be determined or both;
(5) the place or places where and the manner in which the principal of,
premium, if any, and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or agency
for the Securities of the series maintained by the Issuer pursuant to
Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or method
of payment therefor if other than in cash and any terms and conditions upon
which and the manner in which (if different from the provisions of Article
Twelve) Securities of the series may be so redeemed, purchased or repaid,
in whole or in part pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which the price or prices
(or the method by which such price or prices shall be determined or both)
at which, the form or method of payment therefor if other than in cash and
any terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(13) any deleted, modified or additional events of default or remedies
or any deleted, modified or additional covenants with respect to the
Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
(15) any provision relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall
<PAGE>
9
accrete, if any, and the date or dates from or to which or period or
periods during which such original issue discount shall accrete at such
rate or rates);
(16) if other than Dollars, the foreign currency in which payment of
the principal of, premium, if any, and interest, if any, on the Securities
of such series shall be payable;
(17) if other than State Street Bank and Trust Company is to act as
Trustee for the Securities of such series, the name and Corporate Trust
Office of such Trustee;
(18) if the amounts of payments of principal of, premium, if any, and
interest, if any, on the Securities of such series are to be determined
with reference to an index, the manner in which such amounts shall be
determined;
(19) the terms for conversion or exchange, if any, with respect to the
Securities of such series; and
(20) 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 by or pursuant
to the Board Resolution or Officers' Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures
and agreed to by the Trustee, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered by
the Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer Order
or pursuant to such
<PAGE>
10
procedures, (d) if provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or agents, which
oral instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued, any
separate request by the Issuer that the Trustee authenticate Securities of
such series for original issuance will be deemed to be a certification by
the Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of such
Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been
duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of
an offering that is not underwritten, certain terms of the Securities
of such series have been established pursuant to a Board Resolution, an
Officers' Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be established
pursuant to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized by the
Issuer and will have been established in conformity with the provisions
of this Indenture;
(c) when the Securities of such series have been executed by the
Issuer and the Securities of such series have been authenticated by the
Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, they will
have been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in accordance
with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of
such series will not contravene any provision of applicable law or the
articles of incorporation or bylaws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its Subsidiaries
that is material to the Issuer and its Subsidiaries, considered as one
enterprise, or, to such counsel's knowledge after the inquiry indicated
therein (which shall be reasonable), any judgment, order or decree of
any governmental agency or any court having jurisdiction over the
Issuer or any Subsidiary of the Issuer, and no consent, approval or
authorization of any governmental body or agency is required for the
performance by the Issuer of its obligations under the Securities,
except such as are specified and have been obtained and such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In addition, if the authentication and delivery relates to a new series
of Securities created by an indenture supplemental hereto, such Opinion of
Counsel shall also state that all laws and requirements with respect to the form
and execution by the Issuer of the supplemental indenture with respect to the
series of Securities have been complied with, the Issuer has corporate power to
execute and deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental indenture has been
executed and delivered and constitutes the legal, valid and binding obligation
of the Issuer enforceable in accordance with its terms.
<PAGE>
11
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Delaware and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer, or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers 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 the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of a seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
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12
of its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to the
Securities of any series, if not so established, in denominations of $1,000 and
any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if any,
and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
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13
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2.
The Issuer 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 of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer 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
shall no longer be represented by a Global Security or Securities. In such
event, the Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
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14
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid and legally binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of the Issuer, the Trustee shall authenticate and deliver a
new Security of the same series, maturity date, interest rate, if any, and
original issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substitute Security
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as may be required by the Trustee or the
Issuer or any such agent to indemnify and defend and to save each of the Trustee
and the Issuer and any such agent harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
<PAGE>
15
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of all cancelled
Securities in accordance with its standard procedures and shall deliver a
certificate of such disposition to the Company. If the Issuer or its agent shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal
of, premium, if any, and interest, if any, on each of the Securities at the
place, at the respective times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, and an office or agency
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as
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16
registrar and paying agent and as the agent upon whom notices and demands may be
served with respect to the Securities.
SECTION 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such paying agent
shall agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such paying agent for the
payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and
the Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the
principal of, premium, if any, or interest, if any, on the Securities when
the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the Securities,
set aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal, premium, if any, or interest,
if any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of, premium, if any, or
interest, if any, on the Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will,
on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal,
premium, if any, or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium, if
any, or interest, if any, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of its action or failure so to act.
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17
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each January 1 and
July 1, and
(b) at such other times as the Trustee may request in writing, within
15 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a)
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the
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18
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe), if any, which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or,
if the Issuer is not required to file information, documents or reports pursuant
to either of such Sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a debt security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) to furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his knowledge of the Issuer's compliance with
all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act of 1939 at the times and
in the manner provided pursuant thereto. To the extent that any such report is
required by the Trust Indenture Act of 1939 with respect to any 12 month period,
such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
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19
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or otherwise), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(c) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Securities of such series, as and when such
obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given by certified or registered mail to the Issuer by the
Trustee, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction shall
enter an order for relief with respect to the Issuer or any of its significant
subsidiaries under any applicable bankruptcy, insolvency or other similar law of
the United States of America, any state thereof or the District of Columbia, or
without the consent of the Issuer a court having jurisdiction shall enter a
judgment, order or decree adjudging the Issuer or any of its significant
subsidiaries bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in respect of the
Issuer or any of its significant subsidiaries under any applicable bankruptcy,
insolvency or other similar law of the United States of America, any state
thereof or the District of Columbia, and the continuance of any such judgment,
order or decree is unstayed and in effect for a period of 60 consecutive days;
or
(f) the Issuer or any of its significant subsidiaries shall institute
proceedings for entry of an order for relief with respect to the Issuer or any
of its significant subsidiaries under any applicable bankruptcy, insolvency or
other similar law of the United States of America, any state thereof or the
District of Columbia, or for an adjudication of insolvency, or shall consent to
the institution of bankruptcy or insolvency proceedings against it, or shall
file a petition seeking, or seek or consent to reorganization, arrangement,
composition or relief under any applicable bankruptcy, insolvency or other
similar law of the United States of America, any state thereof or the District
of Columbia, or shall consent to the filing of such petition or to the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or of substantially all of its
property, or the Issuer or any of its significant subsidiaries shall make a
general assignment for the benefit of creditors as recognized under any
applicable bankruptcy, insolvency or other similar law of the United States of
America, any state thereof or the District of Columbia; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or any of its significant
subsidiaries or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Issuer or
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20
any of its significant subsidiaries, whether such Indebtedness exists on the
date hereof or shall hereafter be created, which default shall have resulted in
such Indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, or any default in
payment of such Indebtedness (after the expiration of any applicable grace
periods and the presentation of any debt instruments, if required), if the
aggregate amount of all such Indebtedness that has been so accelerated and with
respect to which there has been such a default in payment shall exceed
$25,000,000, without each such default and acceleration having been rescinded or
annulled within a period of 20 days after there shall have been given by
certified or registered mail to the Issuer by the Trustee, or to the Issuer and
the Trustee by the Holders of at least 25% in aggregate principal amount of the
Securities of such series then Outstanding, a written notice specifying each
such default and requiring the Issuer to cause each such default and
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the Securities
of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee and all other amounts due the Trustee under Section 6.6, and any and all
defaults under this Indenture, other than the nonpayment of such portion of the
principal amount of and accrued interest, if any, on Securities of such series
which shall have become due by acceleration, shall have been cured or shall have
been waived in accordance with Section 5.7 or provision deemed by the Trustee to
be adequate shall have been made therefor, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series then Outstanding, by written notice to the Issuer and to the Trustee, may
rescind and annul such declaration and its consequences; but no such rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. Notwithstanding the previous sentence, no
waiver shall be effective against any Holder for any Event of Default or event
which with notice or lapse of time or both would be an Event of Default with
respect to any covenant or provision which cannot be modified or amended without
the consent of the Holder of each outstanding Security affected thereby, unless
all such affected Holders agree, in writing, to waive such Event of Default or
other event.
If any Event of Default with respect to the Issuer specified in Section
5.1(e) or 5.1(f) occurs, all unpaid principal amount (or, if the Securities of
any series then Outstanding are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of each such series)
and accrued interest on all Securities of each series then Outstanding shall
ipso facto become and be immediately due and payable without any declaration or
other act by the Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
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21
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 30 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, 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 and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses or otherwise
pursuant to Section 6.6, including counsel fees and expenses incurred by it up
to the date of such distribution. To the extent that such payment of reasonable
compensation, expenses and counsel fees and expenses out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, moneys, securities and other
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22
property which the Holders of the Securities of such series may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee pursuant to Section 6.6 except as a result of its negligence
or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities of
such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the rate borne by the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest, if any, without
preference or priority of principal over interest or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made
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23
written request to the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding, it being understood
and intended, and being expressly covenanted by the Holder of every Security of
such series with every other Holder and the Trustee, that no one or more Holders
of Securities of such series shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture or of the Securities
to affect, disturb or prejudice the rights of any other Holder of such
Securities of such series, or to obtain or seek to obtain priority over or
preference as to any other such Holder, or to enforce any right under this
Indenture or the Securities, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, the right of any Holder of any Security to receive payment of
the principal of, premium, if any, and interest, if any, on such Security, on or
after the respective due dates expressed in such Security, or to institute suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of such series; provided, however, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine upon advice of counsel that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors, its executive committee, or a trust
committee of directors or Responsible Officers or both shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of all of
the Securities of such series waive any past default or Event of Default
hereunder and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Securities of such series. Upon any such
waiver the Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 5.7, said
default or Event of Default shall for all purposes of the Securities and this
Indenture be deemed to have been cured and to be not continuing.
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24
SECTION 5.8 Notice of Defaults. The Trustee shall, within 30 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or Responsible Officers or both, of the Trustee in good faith determines that
the withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.9
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Securityholder, or group of Securityholders, holding in the aggregate more
than 10% in principal amount of the Securities of any series then Outstanding,
or to any suit instituted by any Securityholders for the enforcement of the
payment of the principal of or interest, if any, on any Security against the
Issuer on or after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. In case an Event of Default with respect to the Securities of
a series has occurred (which has not been cured or waived) the Trustee shall
exercise with respect to such series of Securities such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but
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25
in the case of any such statements, certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.7 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.7), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such
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26
expenses or liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by the Trustee
or any predecessor Trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) The Trustee shall not be charged with knowledge of any default or
Event of Default with respect to a series of Securities unless either (i) a
Responsible Officer of the Trustee assigned to the Corporate Trust Office of the
Trustee (or any successor division or department of the Trustee) shall have
actual knowledge of such default or Event of Default or (ii) written notice of
such default or Event of Default shall have been given to the Trustee by the
Issuer or any other obligor on such series of Securities or by any Holder of
Securities of such series; and
(i) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation
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27
or removal of the Trustee and shall not be subordinate to the payment of Senior
Indebtedness pursuant to Article Thirteen. Such additional indebtedness shall be
a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 5.1
or in connection with Section 5.9 hereof, the expenses (including the reasonable
fees and expenses of its counsel) and the compensation for the service in
connection therewith are intended to constitute expenses of administration under
any bankruptcy law. The provisions of this Section 6.6 shall survive the
resignation or removal of the Trustee and the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. This
Indenture shall always have a Trustee who satisfies the requirements of Section
310(a)(1) of the Trust Indenture Act of 1939. The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with Section
310(b) of the Trust Indenture Act of 1939 regarding disqualification of a
trustee upon acquiring a conflicting interest.
SECTION 6.9 Persons Eligible for Appointment as Trustee; Different
Trustees for Different Series. The Trustee for each series of Securities
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any state or the District of
Columbia having a combined capital and surplus of at least $25,000,000, and
which is authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal, state or District of Columbia
authority, or a corporation or other Person permitted to act as trustee by the
Commission. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor upon the Securities or any Affiliate of such obligor shall serve as
trustee upon the Securities. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.9, the Trustee
shall resign immediately in the manner and with the effect specified in Section
6.10.
A different Trustee may be appointed by the Issuer for any series of
Securities prior to the issuance of such Securities. If the initial Trustee for
any series of Securities is to be a trustee other than State Street Bank and
Trust Company, the Issuer and such Trustee shall, prior to the issuance of such
Securities, execute and deliver an indenture supplemental hereto, which shall
provide for the appointment of such Trustee as Trustee for the Securities of
such series and shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in
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28
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Article Five, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Article
Five, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Article Five, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all
<PAGE>
29
or any applicable series shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for
such series hereunder; but, nevertheless, on the written request of the Issuer
or of the successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and
deliver an instrument transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such successor trustee, the
Issuer shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer fails
to give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture), shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of 1939,
excluding any creditor relationship listed in Section 311(b) of the
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Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
(including the authenticating agency contemplated by this Indenture) of any
Authenticating Agent, shall continue to be the Authenticating Agent with respect
to all series of Securities for which it served as Authenticating Agent without
the execution or filing of any paper or any further act on the part of the
Trustee or such Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument
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or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder 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 or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or by any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made, shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which a Responsible Officer of the Trustee knows are 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 Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three Business Days
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after such filing. Except as aforesaid, any such action taken by the Holder of
any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, establish a record date for the purpose of
determining the Persons entitled to (i) waive any past default with respect to
the Securities of such series in accordance with Section 5.7 of the Indenture,
(ii) consent to any supplemental indenture in accordance with Section 8.2 of the
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and any such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or waive
compliance with any such term, condition or provision, whether or not such
Holder remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designated proxies,
of the requisite principal amount of Outstanding Securities of such series prior
to the date which is the 120th day after such record date, any such waiver or
consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a Board Resolution (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order), and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series) and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
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(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall materially adversely
affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to provide for the issuance of Securities of any series in coupon
form (including Securities registrable as to principal only) and to provide for
exchangeability of such Securities for the Securities issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this Indenture
under the Trust Indenture Act of 1939, or under any similar federal statute
hereafter enacted, and to add to this Indenture such other provisions as may be
expressly permitted by the Trust Indenture Act of 1939, excluding, however, the
provisions referred to in Section 316(a)(2) of the Trust Indenture Act of 1939
as in effect at the date as of which this instrument was executed or any
corresponding provision provided for in any similar federal statute hereafter
enacted; and
(h) to evidence and provide for the acceptance of appointment hereunder
of a Trustee other than State Street Bank and Trust Company as Trustee for a
series of Securities 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 6.9 hereof;
(i) subject to Section 8.2 hereof, to add to or modify the provisions
hereof as may be necessary or desirable to provide for the denomination of
Securities in foreign currencies which shall not adversely affect the interests
of the Holders of the Securities in any material respect;
(j) to modify the covenants or Events of Default of the Issuer solely
in respect of, or add new covenants or Events of Default of the Issuer that
apply solely to, Securities not Outstanding on the date of such supplemental
indenture; and
(k) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee
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may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
stated final maturity of the principal of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest, if
any, thereon (or, in the case of an Original Issue Discount Security, reduce the
rate of accretion of original issue discount thereon), or reduce or alter the
method of computation of any amount payable on redemption, repayment or purchase
by the Issuer thereof (or the time at which any such redemption, repayment or
purchase may be made), or make the principal thereof (including any amount in
respect of original issue discount), or interest, if any, thereon payable in any
coin or currency other than that provided in the Securities or in accordance
with the terms of the Securities, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy in each case pursuant to Article Five, or impair or affect the right
of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under this
Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may at its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Issuer (or the Trustee at the request and expense of the Issuer) shall give
notice thereof to the Holders of then Outstanding Securities of each series
affected thereby, as provided in Section 11.4. Any failure of the Issuer to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all
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the terms and conditions of any such supplemental indenture shall be and shall
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture and that all conditions precedent to the
execution and delivery of such supplemental indenture have been satisfied.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Issuer, authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, and the
Issuer hereby covenants and agrees, that any such consolidation, merger, sale,
lease, exchange or other disposition shall be upon the conditions that (a)
immediately after giving effect to such consolidation, merger, sale, lease,
exchange or other disposition of the Person (whether the Issuer or such other
Person) formed by or surviving any such consolidation or merger, or to which
such sale, lease, exchange or other disposition shall have been made, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; (b) the
Person (if other than the Issuer) formed by or surviving any such consolidation
or merger, or to which such sale, lease, exchange or other disposition shall
have been made, shall be a corporation or partnership organized under the laws
of the United States of America, any state thereof or the District of Columbia;
and (c) the due and punctual payment of the principal of and interest, if any,
on all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the Person (if other than the Issuer) formed by
such consolidation, or into which the Issuer shall have been merged, or by the
Person which shall have acquired or leased such property.
SECTION 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, 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, premium, if any, and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
Person shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part, and the Issuer
(including any intervening successor to the Issuer which shall have become the
obligor hereunder) shall be relieved of any further obligation under this
Indenture and the Securities; provided, however, that in the case of a sale,
lease, exchange or other disposition of
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36
the property and assets of the Issuer (including any such intervening
successor), the Issuer (including any such intervening successor) shall continue
to be liable on its obligations under this Indenture and the Securities to the
extent, but only to the extent, of liability to pay the principal of and
interest, if any, on the Securities at the time, places and rate prescribed in
this Indenture and the Securities. Such successor Person thereupon may cause to
be signed, and may issue either in its own name or in the name of the Issuer,
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Issuer and delivered to the Trustee; and, upon the order of
such successor Person instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and form (but not in
substance) may be made in the Securities, thereafter to be issued, as may be
appropriate.
SECTION 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, shall receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption complies with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
COVENANT DEFEASANCE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of,
premium, if any, and interest, if any, on all the Securities Outstanding (other
than Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (ii) the Issuer shall have delivered to the Trustee
for cancellation all Securities theretofore authenticated (other than Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9); and if, in any such case, the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer (including
all amounts payable to the Trustee pursuant to Section 6.6), then this Indenture
shall cease to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred,
and to compensate the Trustee for any services thereafter reasonably and
properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(b) If at any time (i) the Issuer shall have paid or caused to be paid
the principal of, premium, if any, and interest, if any, on all the Securities
of any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (ii) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (iii) in the case of any series of Securities
with respect to which the exact amount described in clause (B) below can be
determined at the time of making the deposit referred to in such clause (B), (A)
all the Securities of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or by their terms are to become
due and payable
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37
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (B) the Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such series,
cash in an amount (other than moneys repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 10.4) or non-callable, non-prepayable
bonds, notes, bills or other similar obligations issued or guaranteed by the
United States government or any agency thereof the full and timely payment of
which are backed by the full faith and credit of the United States ("U.S.
Government Obligations"), maturing as to principal and interest, if any, at such
times and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (1) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and (2)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (B) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (iii) of this Section 10.1(b), as to (I) rights
of registration of transfer and exchange of Securities of such series, (II)
rights of substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (III) rights of Holders of Securities of such series
to receive payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments thereon, if any, when due, (IV) the
rights, obligations, duties and immunities of the Trustee hereunder, (V) the
rights of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (VI) the obligations of the Issuer under Section 3.2 with respect to
Securities of such series) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(c) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (A) below can be determined at the time
of making the deposit referred to in such subparagraph (A), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (A) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(A) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (1) cash in an
amount, or (2) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (3) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
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38
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay (I) the principal of, premium, if any, and interest,
if any, on all Securities of such series on each date that such principal
or interest, if any, is due and payable, and (II) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(B) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound; and
(C) the Issuer has delivered to the Trustee an Opinion of Counsel based
on the fact that (1) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (2), since the date
hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of, premium, if any, or interest,
if any, on any Security of any series and not applied but remaining unclaimed
for two years after the date upon which such principal, premium, if any, or
interest, if any, shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to the
Issuer by the Trustee for such series or such paying agent and the Holder of the
Securities of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
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 10.1 or the principal or interest received in respect of such
obligations.
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39
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Senior
Indebtedness and the Holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
EMCOR Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, Connecticut 06851.
Any notice, direction, request or demand by the Issuer or any Holder of
Securities to or upon the Trustee shall be deemed to have been sufficiently
given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to State Street Bank and Trust
Company, Goodwin Square, 225 Asylum Street, Hartford, CT 06103, attention:
Corporate Trust Administration (EMCOR Group, Inc. [specify series of
Securities]).
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an
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40
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, on information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows 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, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows 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, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, premium,
if any, or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, purchase or repayment, and, in the
case of payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included herein by any of Sections 310 to 317,
inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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41
SECTION 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the date fixed for redemption, (iii) the redemption price, (iv)
the place or places of payment, (v) the CUSIP number relating to such
Securities, (vi) that payment will be made upon presentation and surrender of
such Securities, (vii) whether such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, (viii) whether interest, if
any, (or, in the case of Original Issue Discount Securities, original issue
discount) accrued to the date fixed for redemption will be paid as specified in
such notice and (ix) whether on and after said date interest, if any, (or, in
the case of Original Issue Discount Securities, original issue discount) thereon
or on the portions thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee, within 10 Business Days after the Issuer gives written notice to the
Trustee that such redemption is to occur, shall select, in such manner as it
shall
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deem appropriate and fair, Securities of such series to be redeemed. Notice of
the redemption shall be given only after such selection has been made.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided by this Article Twelve, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest, if any (or, in the case of Original Issue
Discount Securities, original issue discount) on the Securities or portions of
Securities so called for redemption shall cease to accrue, and such Securities
shall cease from and after the date fixed for redemption (unless an earlier date
shall be specified in a Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the form and terms of the Securities of such series were established)
except as provided in Sections 6.5 and 10.4, to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest, if any, to the date fixed for redemption. On
presentation and surrender of such Securities at a place of payment specified in
said notice, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest, if any, accrued thereon to the date fixed for redemption; provided
that payment of interest, if any, becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.3 and
2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or
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43
receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer
and delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so, credited)
made pursuant to this Section 12.5, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on
the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Issuer, or the Trustee, in the name and at the expense
of the Issuer (if the Issuer shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, and subject to Article Thirteen, any moneys in the sinking fund for
such series at the time when any such default or Event of Default known to a
Responsible Officer of the Trustee shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Article Five or the default cured on or before the 60th
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a) The
Issuer covenants and agrees, and each Holder of Securities of each series, by
his acceptance thereof, likewise covenants and agrees, that anything in this
Indenture or the Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each series is subordinate and
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the
payment of any principal of, premium, if any, or interest, if any, on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, or
(ii) any other default shall occur with respect to Senior Indebtedness and the
maturity of such Senior Indebtedness has been accelerated in accordance with its
terms, then, upon written notice of such default to the Issuer and the Trustee
by the holders of Senior Indebtedness or any trustee therefor, unless and until,
in either case, the default has been cured or waived, or has ceased to exist, or
any such acceleration has been rescinded or such Senior Indebtedness has been
paid in full, no direct or indirect payment (in cash, property, securities, by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest, if any, on any of the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the Issuer (or cash
in lieu of fractional shares thereof).
(c) If any default (other than a default described in paragraph (b) of
this Section 13.1) shall occur under the Senior Indebtedness, pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods occurs (a "Senior Nonmonetary
Default"), then, upon the receipt by the Issuer and the Trustee of written
notice thereof (a "Payment Notice") from or on behalf of holders of such Senior
Indebtedness specifying an election to prohibit such payment and other action by
the Issuer in accordance with the following provisions of this paragraph (c),
the Issuer may not make any payment or take any other action that would be
prohibited by paragraph (b) of this Section 13.1 during the period (the "Payment
Blockage Period") commencing on the date of receipt of such Payment Notice and
ending on the earlier of (i) the date, if any, on which the holders of such
Senior Indebtedness or their representative notify the Trustee that such Senior
Nonmonetary Default is cured or waived or ceases to exist or the Senior
Indebtedness to which such Senior Nonmonetary Default relates is discharged or
(ii) the 179th day after the date of receipt of such Payment Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Issuer may resume payments on the Securities following such Payment Blockage
Period. Any number of Payment Notices may be given; provided, however, that (i)
not more than one Payment Notice shall be given within a period of any 360
consecutive days, and (ii) no default that existed upon the date of such Payment
Notice
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or the commencement of such Payment Blockage Period (whether or not such event
of default is on the same issue of Senior Indebtedness) shall be made the basis
for the commencement of any other Payment Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver,
conservator, liquidator or trustee of the Issuer or of any of its property is
appointed by the order or decree of any court or agency or supervisory authority
having jurisdiction, and such decree or order remains in effect for more than 60
days or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Issuer under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect (including without limitation the Bankruptcy Code),
and is not dismissed within 60 days after such filing; or (ii) the Issuer (A)
commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or (C)
fails generally to, or cannot, pay its debts generally as they become due or (D)
takes any corporate action to authorize or effect any of the foregoing; or (iii)
any Subsidiary of the Issuer takes, suffers or permits to exist any of the
events or conditions referred to in the foregoing clause (i) or (ii), then all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or adjustment) which would otherwise (but
for these subordination provisions) be payable or deliverable in respect of the
Securities of any series shall be paid or delivered directly to the holders of
Senior Indebtedness in accordance with the priorities then existing among such
holders until all Senior Indebtedness (including any interest thereon accruing
after the commencement of any such proceedings) shall have been paid in full. In
the event of any such proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness, the Holders of the Securities, together with the
holders of any obligations of the Issuer ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the Issuer
the amounts at the time due and owing on account of unpaid principal of and
interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of
any character, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by the
Trustee or any Holder in contravention of any of the terms hereof, such payment
or distribution of securities shall be received in trust for the benefit of and
shall be paid over or delivered and transferred to the holders of the Senior
Indebtedness then outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in
full. In the event of the failure of the Trustee or any Holder to endorse or
assign any such payment, distribution or security, each holder of such Senior
Indebtedness is hereby irrevocably authorized to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer
<PAGE>
46
or any Holder of Securities. Nothing contained herein shall impair, as between
the Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to remove cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on
a parity with the Securities, shall not be deemed to prevent such obligations
from constituting, respectively, obligations ranking on a parity with the
Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the bankruptcy trustee, receiver, assignee for the benefit of creditors or other
Person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Issuer, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Thirteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) as evidence that such Person is a
holder of Senior Indebtedness (or is such a trustee or representative). If 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 distributions pursuant to this Article Thirteen,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
Person, as to the extent to which such Person is entitled to participate in such
payment or distribution, and to other facts pertinent to the rights of such
Person under this Article Thirteen, 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.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in this
Article Thirteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent (a) the Issuer at any time, except during the pendency of any
default with respect to Senior Indebtedness described in Section 13.1(b) or
Section 13.1(c) or of any of the events described in Section 13.1(d), from
making payments of the principal of or interest, if any, on the Securities, or
(b) the application by the Trustee or any paying agent of any moneys deposited
with it hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such paying
<PAGE>
47
agent, as the case may be, did not have the written notice provided for in
Section 13.5 of any event prohibiting the making of such deposit, or if, at the
time of such deposit (whether or not in trust) by the Issuer with the Trustee or
paying agent (other than the Issuer) such payment would not have been prohibited
by the provisions of this Article Thirteen, and the Trustee or any paying agent
shall not be affected by any notice to the contrary received by it on or after
such date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or under any Senior Indebtedness,
other than any Senior Indebtedness as to which the provisions of this Section
13.4 shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such Senior
Indebtedness, shall not be deemed a default under Section 13.1 hereof if (i) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, or (B) if a judgment that is subject to further review or appeal has
been issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Thirteen or elsewhere in this Indenture contained to
the contrary notwithstanding, the Trustee shall not at any time be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment of moneys to or by the Trustee and shall be entitled to assume
conclusively that no such facts exist and that no event specified in clauses (b)
and (c) of Section 13.1 has happened unless and until the Trustee shall have
received an Officers' Certificate to the effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or the representatives,
of Senior Indebtedness who shall have been certified by the Issuer or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any indenture pursuant to
which such Senior Indebtedness shall be outstanding; provided, however, that, if
the Trustee shall not have received the Officers' Certificate or notice provided
for in this Section 13.5 at least three Business Days preceding the date upon
which by the terms hereof any moneys become payable for any purpose (including,
without limitation, the payment of either the principal of or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it within
three Business Days preceding such date. The Issuer shall give prompt written
notice to the Trustee and to each paying agent of any facts that would prohibit
any payment of moneys to or by the Trustee or any paying agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of
Securities by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article Thirteen shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "Trustee" as used in this Article
Thirteen shall in such case (unless the context shall otherwise require) be
construed as extending to and
<PAGE>
48
including such paying agent within its meaning as fully for all intents and
purposes as if the paying agent were named in this Article Thirteen in addition
to or in place of the Trustee; provided, however, that Sections 13.5 and 13.7
shall not apply to the Issuer if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of
the Issuer or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Indebtedness, may at any time or from time to time and in their absolute
direction, change the manner, place or terms of payment, change or extend the
time of payment of, or renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under such Senior
Indebtedness, including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Issuer, the Trustee or the
Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Issuer. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
<PAGE>
49
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the date first written above.
EMCOR GROUP, INC.
By:___________________________
Title:________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:___________________________
Title:________________________
<PAGE>
Exhibit 4.5
EMCOR GROUP, INC.
and
[WARRANT AGENT]
As Warrant Agent
----------------
Warrant Agreement -- [Common Stock]
[Preferred Stock]*
Dated as of , 199_
-----------------
* Options Represented By Bracketed Or Blank Sections Herein Shall Be
Determined In Conformity With The Applicable Prospectus Supplement Or
Supplements
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I.
<S><C>
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES....................................... 1
SECTION 1.1. Issuance of Warrants..................................................................... 1
SECTION 1.2. Execution and Delivery of Warrant Certificates........................................... 2
SECTION 1.3. Issuance of Warrant Certificates......................................................... 3
SECTION 1.4. Temporary Warrant Certificate............................................................ 3
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS............................................. 4
SECTION 2.1. Warrant Price............................................................................ 4
SECTION 2.2. Duration and Exercise of Warrants........................................................ 4
SECTION 2.3. No Fractional Shares to Be Issued........................................................ 5
SECTION 2.4. Covenant to Reserve Shares for Issuance on Exercise...................................... 6
SECTION 2.5. Share Record Date........................................................................ 7
SECTION 2.6. Rights Upon Dissolution or Liquidation................................................... 8
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE............................... 8
SECTION 3.1. Adjustment of Warrant Price.............................................................. 8
[SECTION 3.2. Adjustment of shares of [Common] [Preferred] Stock
Purchasable Upon Exercise of Warrants......................................................... 14
SECTION 3.3. Statements on Warrants................................................................... 15
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES...................................... 15
SECTION 4.1. No Rights as Warrant Securityholder Conferred by Warrants or
Warrant Certificates.......................................................................... 15
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant Certificates................................ 15
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights......................................... 16
SECTION 4.4. Reclassification, Consolidation, Merger, Share Exchange, Sale
or Conveyance................................................................................. 16
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
<S><C>
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES........................................... 17
SECTION 5.1. Exchange and Transfer of Warrant Certificates............................................ 17
SECTION 5.2. Treatment of Holders of Warrant Certificates............................................. 18
SECTION 5.3. Cancellation of Warrant Certificates..................................................... 19
ARTICLE VI.
CONCERNING THE WARRANT AGENT......................................... 19
SECTION 6.1. Warrant Agent............................................................................ 19
SECTION 6.2. Conditions of Warrant Agent's Obligations................................................ 19
(a) Compensation and Indemnification..................................................... 19
(b) Agent for the Company................................................................ 19
(c) Counsel.............................................................................. 20
(d) Documents............................................................................ 20
(e) Certain Transactions................................................................. 20
(f) No Liability for Interest............................................................ 20
(g) No Liability for Invalidity.......................................................... 20
(h) No Responsibility for Representations................................................ 20
(i) No Implied Obligations............................................................... 20
SECTION 6.3. Resignation and Appointment of Successor................................................. 21
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]................................ 23
[SECTION 7.1. Redemption.............................................................................. 23
SECTION 7.2. Accelerated Share Conversion Date........................................................ 23
SECTION 7.3. Conversion of Warrants into Shares....................................................... 24
SECTION 7.4. Notice of Proposed Actions............................................................... 25
ARTICLE VIII.
MISCELLANEOUS................................................ 26
SECTION 8.1. Amendment................................................................................ 26
SECTION 8.2. Notices and Demands to the Company and Warrant Agent..................................... 26
SECTION 8.3. Addresses................................................................................ 26
SECTION 8.4. Applicable Law........................................................................... 27
SECTION 8.5. Delivery of Prospectus................................................................... 27
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
<S><C>
SECTION 8.6. Obtaining of Governmental Approvals...................................................... 27
SECTION 8.7. Persons Having Rights under Warrant Agreement............................................ 27
SECTION 8.8. Headings................................................................................. 27
SECTION 8.9. Counterparts............................................................................. 27
SECTION 8.10. Inspection of Agreement................................................................. 27
</TABLE>
iii
<PAGE>
EMCOR GROUP, INC.
Form of [Common Stock][Preferred Stock]
Warrant Agreement*
THIS WARRANT AGREEMENT dated as of , 199_ between EMCOR Group,
Inc., a Delaware Corporation (the "Company,") and [Warrant Agent], as Warrant
Agent (herein called the "Warrant Agent").
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually a
"Warrant") representing the right to purchase [ ] shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), [ ] shares of the
Company's preferred stock, par value $.10 per share (the "Preferred Stock",
collectively with the Common Stock, the "Warrant Securities"), such warrant
certificates and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates"; and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after (the "Detachable Date")][and shall not be separately
transferable] and each Warrant Certificate shall evidence one or more Warrants.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase Warrant Securities. [If
Offered Securities and Warrants -- Warrant Certificates shall be initially
issued in units with the Offered Securities and each Warrant Certificate
included in such a unit shall evidence
Warrants for each shares of Offered Securities included in such unit.]
- --------
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
<PAGE>
2
SECTION 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, shall be dated and may
have such letters, numbers, or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
officers of the Company executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Warrants may be listed, or to conform to
usage. The Warrant Certificates shall be executed on behalf of the Company by
[its Chairman of the Board, the President, any Senior Vice President, or any
Vice President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced in the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon any Warrant Certificate executed by the
Company shall be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean any person in whose name at the time any Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose [If Offered Securities and Warrants are not immediately detachable
- -- or upon the register of the Offered Securities prior to the Detachable Date.
Prior to the Detachable Date, the Company will, or will cause the registrar of
the Offered Securities to, make available at all times to the Warrant Agent such
information as to holders of the Offered Securities with Warrants as may be
necessary to keep the Warrant Agent's records up to date].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate total number not
exceeding Warrant Securities (except as provided in Sections 1.4, 3.1 and 4.2)
may be executed by the Company and delivered to the Warrant Agent upon the
execution of this Warrant Agreement or from time to time thereafter. The Warrant
Agent shall, upon receipt of Warrant Certificates duly
<PAGE>
3
executed on behalf of the Company, countersign Warrant Certificates evidencing
Warrants representing the right to purchase up to Warrant Securities and shall
deliver such Warrant Certificates to or upon the order of the Company.
Subsequent to such issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned Warrant
Certificates or in connection with their transfer, as hereinafter provided or as
provided in Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ], without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company shall
execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. (a) During the period
from , through and including , the exercise price of each
Warrant will be . During the period from , through
and including , the exercise price of each Warrant will
be . Such purchase price of Warrant Securities is referred to
in this Warrant Agreement as the "Warrant Price". No adjustment shall be made
for any dividends on any Warrant Securities issuable upon exercise of any
Warrants.
(b) Warrants may be exercised by the holders thereof at any
time, at the Warrant Price then in effect, when the Warrant Securities are
registered pursuant to an effective registration statement under the Securities
Act. Warrants shall in no event be exercisable for the purchase of Warrant
Securities at any time when such Warrant Securities are not registered pursuant
to an effective registration statement under the Securities Act.
<PAGE>
4
The Company shall be required to register the Warrant
Securities, or holders will have such other rights, only as provided in Section
2.3.
The Company shall promptly give all holders notice of the
effectiveness of a registration statement in respect of Warrant Securities and
of any subsequent lapses in the effectiveness of such registration statement.
SECTION 2.2. Duration and Exercise of Warrants. (a) The
registered holder of any Warrant Certificate may exercise the Warrants evidenced
thereby in whole or in part at any time after , upon surrender of the Warrant
Certificate with the form of election to purchase on the reverse side thereof
duly executed, to the Warrant Agent at the principal office of the Warrant Agent
[in the Borough of Manhattan, City and State of New York,] together with payment
of the Warrant Price for each share of [Common] [Preferred] Stock as to which
the Warrants are exercised, at or prior to 5:00 P.M. ([New York time]) on [the
earliest of (i) , (the "Scheduled Share Conversion Date"), (ii) the Accelerated
Share Conversion Date as defined in Section 7.1 hereof, or (iii) the business
day immediately preceding the Redemption Date as defined in Section 7.1 hereof]
[ [or such later date as the Company may designate, by notice to the Warrant
Agent and the holders of the Warrant Certificates mailed to their addresses as
set forth in the record books of the Warrant Agent] (the "Expiration Date").
Each Warrant not exercised at or before 5 P.M. [New York City time], on the
Expiration Date shall become void, and all rights of the holder of the Warrant
Certificate evidencing such Warrant under this Agreement shall cease].
(b) The Warrant Price for each share of [Common] [Preferred]
Stock pursuant to the exercise of a Warrant shall initially be , shall be
subject to adjustment as provided in Article VII hereof, and shall be payable in
lawful money of the United States of America.
(c) Upon receipt of a Warrant Certificate, with the form of
election to purchase on the reverse side thereof, duly executed, accompanied by
payment of the Warrant Price for the shares to be purchased and an amount equal
to any applicable transfer tax in cash, or by check, bank draft or postal or
express money order payable to the order of the Company, the Warrant Agent shall
thereupon promptly (i) requisition from any transfer agent of the [Common]
[Preferred] Stock of the Company certificates for the number of whole shares of
[Common] [Preferred] Stock to be purchased and, when appropriate, for the number
of fractional shares to be sold by the Warrant Agent, and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, (ii)
when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares or Warrants, and (iii) promptly after
receipt of such certificates cause the same to be delivered to or upon the order
of the registered holder of such Warrant Certificate, registered in such name or
names as may be designated by such holder, and , when appropriate, after receipt
promptly deliver such cash to or upon the order of the registered holder of such
Warrant Certificate.
(d) In case the registered holder of any Warrant Certificate
shall exercise less than all the Warrants evidenced thereby, a new Warrant
Certificate evidencing Warrants equivalent to the Warrants remaining unexercised
shall be issued by the Warrant Agent to the
<PAGE>
5
registered holder of such Warrant Certificate or to his duly authorized assigns,
subject to the provisions of Section 2.4 hereof.
(e) The Warrant Agent shall account promptly to the Company
with respect to Warrants exercised and concurrently pay to the Company all
monies received for the purchase of shares of [Common] [Preferred] Stock through
the exercise of Warrants.
SECTION 2.3. No Fractional Shares to Be Issued.
(a) Notwithstanding anything to the contrary contained in this
Agreement, if the number of shares of [Common] [Preferred] Stock purchasable on
the exercise of each Warrant is not a whole number, the Company shall not be
required to issue any fraction of a share of [Common] [Preferred] Stock or to
distribute stock certificates that evidence fractional shares of [Common]
[Preferred] Stock or to issue a Warrant Certificate representing a fractional
Warrant upon exercise of any Warrants. If Warrant Certificates evidencing more
than one Warrant shall be surrendered for exercise at one time by the same
holder, the number of full shares which shall be issuable upon exercise thereof
shall be computed on the basis of the aggregate number of Warrants so
surrendered. [If any fraction of a share of [Common] [Preferred] Stock would,
except for the provisions of this Section 2.3, be issuable on the exercise of
any Warrant or Warrants, the Company shall purchase such fraction for an amount
in cash equal to such fraction of the then current market price of a share of
[Common] [Preferred] Stock. The Warrant holders, by their acceptance of the
Warrant Certificates, expressly waive their right to receive any fraction of a
share of [Common] [Preferred] Stock or a stock certificate representing a
fraction of a share of [Common] [Preferred] Stock.
(b) If the number of shares purchasable upon the exercise of
each Warrant is adjusted pursuant to Section 3.1(l), the Company shall
nonetheless not be required to issue fractions of shares upon exercise of the
Warrants or to distribute share certificates which evidence fractional shares,
nor shall the Company be required to make any cash adjustment in respect of a
fractional interest in a share, but the fractional interest to which any person
is entitled shall be sold in the manner set forth in subsection (c) of this
Section 2.3 by the Warrant Agent, acting as agent for the person entitled to
such fractional interest, except as otherwise provided in such subsection.
(c) The Warrant Agent shall remit to such person the proceeds
of the sale of any such fractional interest sold by it as such agent. Fractional
interests shall be non-transferable except by or to the Warrant Agent acting as
herein authorized. The Warrant Agent may sell fractional interests on the basis
of market prices of the Warrants or shares of [Common] [Preferred] Stock as
determined by the Warrant Agent in its sole discretion. In lieu of making an
actual sale of a fractional interest, the Company may authorize the Warrant
Agent to value fractional interests without actual sale on the basis of the
current market price of the Warrants or shares of [Common] [Preferred] Stock as
determined by the Warrant Agent in its sole discretion.
SECTION 2.4. Covenant to Reserve Shares for Issuance on
Exercise. The Company covenants that it will at all times reserve and keep
available out of its authorized but unissued Warrant Securities or its
authorized and issued Warrant securities held in its
<PAGE>
6
Treasury, solely for the purpose of issue upon exercise of Warrants, the full
number of Warrant Securities, if any, then issuable if all outstanding Warrants
then exercisable were to be exercised. The Company covenants that, subject to
payment of the Warrant Price, all shares of [Common] [Preferred] Stock which
shall be so issuable shall be duly and validly issued and fully paid and
nonassessable.
[The Company hereby authorizes and directs its current and
future transfer agents for the shares of [Common] [Preferred] Stock and for any
shares of the Company's capital stock issuable upon the exercise of any of the
Warrants at all times to reserve such number of authorized shares as shall be
requisite for such purpose. The Company will supply such transfer agents with
duly executed stock certificates for such purposes and will provide or otherwise
make available any cash which may be payable as provided in this Article II.]
The Company covenants that if any shares of [Common]
[Preferred] Stock required to be reserved for purposes of exercise of Warrants
require, under any federal or state law or rule or regulation of any national
securities exchange, registration with or approval of any governmental
authority, or listing on any national securities exchange before such shares may
be issued upon exercise, the Company will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered, approved or listed
on the relevant national securities exchange, as the case may be; provided,
however, that in no event shall such shares of [Common] [Preferred] Stock be
issued, and the Company is hereby authorized to suspend the exercise of all
Warrants, for the period during which such registration, approval or listing is
required but not in effect.
The Company further covenants and agrees that it will pay when
due and payable any and all Federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Warrant
Certificates or of any shares of [Common] [Preferred] Stock upon the exercise or
conversion of Warrants. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer involved in the
transfer or delivery of Warrant Certificates or the issuance or conversion or
delivery of Certificates for shares of [Common] [Preferred] Stock in a name
other than that of the registered holder of the Warrant Certificate evidencing
Warrants surrendered for exercise or to issue or deliver any certificates for
shares of [Common] [Preferred] Stock upon the exercise or conversion of any
Warrants until any such tax shall have been paid (any such tax being payable by
the holder of such Warrant Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
SECTION 2.5. Share Record Date. Each person in whose name any
certificate for shares of [Common] [Preferred] Stock is issued upon the exercise
of Warrants shall for all purposes be deemed to have become the holder of record
of the shares of [Common] [Preferred] Stock represented thereby on, and such
certificate shall be dated, the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Warrant Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the [Common] [Preferred]
Stock transfer books of the Company are closed, such person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding business day on which the [Common] [Preferred] Stock
transfer books of the
<PAGE>
7
Company are open. Prior to the exercise of the Warrants evidenced thereby, the
holder of a [Common] [Preferred] Stock Warrant Certificate shall not be entitled
to any rights of a shareholder of the Company with respect to shares for which
the Warrants shall be exercisable, including, without limitation, the right to
vote, to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
SECTION 2.6. Rights Upon Dissolution or Liquidation.
Notwithstanding any other provision of this Agreement relating to the rights of
holders of Warrant Certificates, in the event that, at any time after the date
hereof, there shall be a voluntary or involuntary dissolution, liquidation or
winding up of the Company, then the Company shall give notice by first-class
mail to each holder of an outstanding Warrant at such holder's address as it
appears on the Warrant Register at the earliest practicable time (and, in any
event, not less than twenty days before any date set for definitive action), of
the date on which such dissolution, liquidation or winding up shall take place,
as the case may be. Such notice shall also specify the date as of which the
holders of record of [Common] [Preferred] Stock or other securities, if any,
underlying the Warrants shall be entitled to exchange their shares for
securities, money or other property deliverable upon such dissolution,
liquidation or winding up, as the case may be, on which date each holder of
outstanding Warrants shall receive cash or other property (taking into account
the Warrant Price then if effect) which it would have been entitled to receive
had the Warrants been exercisable and exercised immediately prior to such
dissolution, liquidation or winding up and the rights to exercise the Warrants
shall terminate.
ARTICLE III.
ADJUSTMENT OF WARRANT PRICE AND
SHARES OF [COMMON] [PREFERRED] STOCK PURCHASABLE
SECTION 3.1. Adjustment of Warrant Price. The Warrant Price
specified in Section 2.1 shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Warrant Securities in shares of its [Common] [Preferred]
Stock, (ii) subdivide the outstanding Warrant Securities into a greater number
of shares, (iii) combine the outstanding Warrant Securities into a smaller
number of shares or (iv) issue any shares of its capital stock in a
reclassification of the shares of [Common] [Preferred] Stock (including any such
reclassification in connection with a consolidation, merger or share exchange in
which the Company is the continuing corporation), the Warrant Price in effect at
such time shall be adjusted so that the holder of any Warrant thereafter
surrendered for exercise shall be entitled to receive the number of shares of
[Common] [Preferred] Stock which he would have owned or have been entitled to
receive after the happening of any of the events described above had such
Warrant been exercised immediately prior to the record date in the case of a
dividend or the effective date in the case of a subdivision or combination. An
adjustment made pursuant to this subparagraph (a) shall become effective
immediately after the record date in the case of a dividend, except as provided
in subparagraph (h) below, and shall become effective immediately after the
effective date in the case of a subdivision or combination.
<PAGE>
8
(b) In case the Company shall issue rights or warrants to all
holders of [Common] [Preferred] Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase shares of [Common] [Preferred] Stock at a price per share less than the
current market price per share of [Common] [Preferred] Stock (as defined for
purposes of this subparagraph (b) in subparagraph (e) below), at the record date
for the determination of stockholders entitled to receive such rights or
warrants, the Warrant Price in effect after such record date shall be determined
by multiplying such Warrant Price by a fraction, the numerator of which shall be
the number of shares of [Common] [Preferred] Stock outstanding at the close of
business on the record date for issuance of such rights or warrants plus the
number of shares of [Common] [Preferred] Stock which the aggregate offering
price of the total number of shares of [Common] [Preferred] Stock so offered
would purchase at such current market price, and the denominator of which shall
be the number of shares of [Common] [Preferred] Stock outstanding at the close
of business on the record date for issuance of such rights or warrants plus the
number of additional shares of [Common] [Preferred] Stock receivable upon
exercise of such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subparagraph (h) below, after such record
date. In case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such consideration
shall be as determined by the Board of Directors of the Company, whose
determination shall be conclusive, and described in a statement filed with the
Warrant Agent. Shares of [Common] [Preferred] Stock owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights or warrants are not so
issued, the Warrant Price shall again be adjusted to be the Warrant Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall distribute to all holders of
shares of [Common] [Preferred] Stock (including any such distribution made in
connection with a consolidation, merger or share exchange in which the Company
is the continuing corporation) any shares of capital stock of the Company (other
than shares of [Common] [Preferred] Stock) or evidences of its indebtedness or
assets (excluding cash dividends or distributions paid from retained earnings of
the Company or from any surplus legally available for dividends under the laws
of the state of incorporation of the Company and dividends payable in shares of
[Common] [Preferred] Stock) or rights or warrants to subscribe for or purchase
any of its securities (excluding those rights or warrants referred to in
subparagraph (b) above) (any of the foregoing being hereinafter in this
subparagraph (c) called the "Securities"), then, in each such case, unless the
Company elects to reserve such Securities (or, at the option of the Company, pay
cash as provided below) for distribution to the holders of the Warrants upon the
exercise of the Warrants so that any such holder exercising Warrants will
receive such exercise, in addition to the Shares of [Common][Preferred] Stock to
which such holder is entitled, the amount and kind of such Securities which such
holder would have received if such holder had, immediately prior to the record
date for the distribution of the Securities, exercised its Warrants into Warrant
Securities (or, at the option of the Company, a sum equal to the value thereof
at the time of distribution as determined by the Company's Board of Directors in
its sole discretion), the Warrant Price shall be adjusted so that the same shall
equal the price determined by multiplying the Warrant Price in effect
immediately prior to the
<PAGE>
9
date of such distribution by a fraction the numerator of which shall be the
current market price per share (as defined for purposes of this subparagraph (c)
in subparagraph (e) below) of the shares of [Common] [Preferred] Stock on the
record date mentioned above less the then fair market value (as determined by
the Board of Directors of the Company, whose determination shall be conclusive)
of the portion of the Securities so distributed allocable to one share of
[Common] [Preferred] Stock, and the denominator of which shall be the current
market price per share (determined as provided in subparagraph (e) below) of the
share of [Common] [Preferred] Stock. Such adjustment shall become effective
immediately prior to the opening of business on the day following the record
date for the determination of shareholders entitled to receive such
distribution. In the event that such distribution is not so made, the Warrant
Price shall again be adjusted to be the Warrant Price which would then be in
effect if such date fixed for the determination of shareholders entitled to
receive such distribution had not been fixed.
(d) If, pursuant to subparagraph (b) or (c) above, the number
of shares of Warrant Securities into which a Warrant is convertible shall have
been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding shares of Warrant Securities in the form of any
right or warrant to purchase securities of the Company, or the Company has
issued any such right or warrant, then, upon the expiration of any such
unexercised right or unexercised warrant, the Warrant Price shall forthwith be
adjusted to equal the Warrant Price that would have applied had such right or
warrant never been declared, distributed or issued.
(e) For the purposes of any computation under subparagraph (b)
above, the current market price per share of [Common] [Preferred] Stock or of
any other security (herein collectively referred to as a "security") at the date
herein specified shall be deemed to be the average of the reported last sales
prices for the [thirty consecutive Trading Days (as defined below) commencing
forty-five Trading Days (as defined below) before the date in question] [ten
consecutive Trading Days (as defined below) selected by the Company commencing
not less than twenty nor more than thirty days before the date in question]. For
the purpose of any computation under subparagraph (c) above, the current market
price per security on any date shall be deemed to be the average of the reported
last sales prices for the ten consecutive Trading Days before the date in
question. The reported last sales price for each day (whether for purposes of
subparagraph (b) or subparagraph (c)) shall be the reported last sales price,
regular way, or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices, regular way, in either case as reported
on the New York Stock Exchange Composite Tape or, if such security is not listed
or admitted to trading on the New York Stock Exchange at such time, on the
principal national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if such
security is not quoted on such National Market System, the average of the
closing bid and asked prices on such day in the over-the-counter market as
reported by NASDAQ or, if bid and asked prices for the security on each such day
shall not have been reported through NASDAQ, the average of the bid and asked
prices for such date as furnished by any New York Stock Exchange member firm
regularly making a market in such security selected for such purpose by the
Board of Directors of the Company or a committee thereof or, if no such
quotations are
<PAGE>
10
available, the fair market value of such security as determined by a New York
Stock Exchange member firm regularly making a market in the shares of [Common]
[Preferred] Stock selected for such purpose by the Board of Directors of the
Company or a committee thereof. As used herein, the term "Trading Day" with
respect to a security means (x) if such security is listed or admitted for
trading on the New York Stock Exchange or another national securities exchange,
a day on which the New York Stock Exchange or such other national securities
exchange is open for business or (y) if such security is quoted on the National
Market System of the NASDAQ, a day on which trades may be made on such National
Market System or (z) otherwise, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(f) No adjustment in the Warrant Price shall be required
unless such adjustment would require an increase or decrease of at least [1%] in
such Warrant Price; provided, however, that any adjustments which by reason of
this paragraph (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article III shall be made to the nearest cent or to the nearest .01 of a share,
as the case may be, with one-half cent and .005 of a share, respectively, being
rounded upward. Anything in this Article III to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Warrant Price, in
addition to those required by this paragraph (f), as it in its discretion shall
determine to be advisable in order that any stock dividend, subdivision of
shares, distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than cash dividends) hereafter made by the
Company to its stockholders shall not be taxable.
(g) Whenever the Warrant Price is adjusted as herein provided,
the Company shall file with the transfer agent a certificate, signed by [the
Chairman of the Board, the President, any Senior Vice President, or any Vice
President] of the Company, setting forth the Warrant Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment; provided, however, that the failure of the Company to file such
officers' certificate shall not invalidate any corporate action by the Company.
(h) In any case in which this Article III provides that an
adjustment shall become effective immediately after a record date for an event,
the Company may defer until the occurrence of such event (y) issuing to the
holder of any Warrant converted after such record date and before the occurrence
of such event the additional shares of Warrant Securities or other assets
issuable upon such exercise by reason of the adjustment required by such event
over and above the Warrant Securities or other assets issuable upon such
exercise before giving effect to such adjustment and (z) paying to such holder
any amount of cash in lieu of any fractional share; provided, however, that the
Company shall deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(i) Whenever the Warrant Price is adjusted as provided in
Article III, the Company shall cause to be mailed to each holder of Warrants at
its then registered address by first-class mail, postage prepaid, a notice of
such adjustment of the Warrant Price setting forth
<PAGE>
11
such adjusted Exercise Price and the effective date of such adjusted Exercise
Price; provided, however, that the failure of the Company to give such notice
shall not invalidate any corporate action by the Company.
(j) In the event that at any time, as a result of an
adjustment made pursuant to Section 3.1, the holder of any Warrant thereafter
exercised shall become entitled to receive any shares of capital stock of the
Company other than shares of [Common] [Preferred] Stock, thereafter the number
of such other shares so receivable upon exercise of any Warrant shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the shares contained in Section
3.1(a) through (c), inclusive and the provisions of Sections 2.3, 2.4 and 2.5
with respect to the shares of [Common] [Preferred] Stock shall apply on like
terms to any such other shares.
(k) All Warrants originally issued by the Company subsequent
to any adjustment made to the Warrant Price hereunder shall evidence the right
to purchase, at the adjusted Warrant Price, the number of shares of [Common]
[Preferred] Stock purchasable from time to time hereunder upon exercise of the
Warrants, all subject to further adjustment as provided herein.
(l) Unless the Company shall have exercised its election as
provided in Section 3.1(m), upon each adjustment of the Warrant Price as a
result of the calculations made in Section 3.1(a),(b) or (c), each Warrant
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Warrant Price, that number of
shares (calculated to the nearest hundredth) obtained by (i) multiplying the
number of shares covered by a Warrant immediately prior to this adjustment of
the number of shares by the Warrant Price in effect immediately prior to such
adjustment of the Warrant Price and (ii) dividing the product so obtained by the
Warrant Price in effect immediately after such adjustment of the Warrant Price.
(m) The Company may elect on or after the date of any
adjustment of the Warrant Price to adjust the number of Warrants, in
substitution for any adjustment in the number of shares of [Common] [Preferred]
Stock purchasable upon the exercise of a Warrant as provided in Section 3.2.
Each of the Warrants outstanding after such adjustment of the number of Warrants
shall be exercisable for one share of [Common] [Preferred] Stock. Each Warrant
held of record prior to such adjustment of the number of Warrants shall become
that number of Warrants (calculated to the nearest hundredth) obtained by
dividing the Warrant Price in effect prior to adjustment of the Warrant Price by
the Warrant Price in effect after adjustment of the Warrant Price. The Company
shall make a public announcement of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date
on which the Warrant Price is adjusted or any day thereafter, but shall be at
least 10 days later than the date of the public announcement. Upon each
adjustment of the number of Warrants pursuant to this subsection (l) the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Warrant Certificates on such record date Warrant Certificates evidencing,
subject to Section 2.4, the additional Warrants to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Warrant
<PAGE>
12
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to which such holders shall be entitled after such
adjustment. Warrant Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Warrant Price) and shall be registered in the names
of the holders of record of Warrant Certificates on the record date specified in
the public announcement.
(n) Irrespective of any adjustment or change in the Warrant
Price or the number of shares of [Common] [Preferred] Stock issuable upon the
exercise of the Warrants, the Warrant Certificates theretofore and thereafter
issued may continue to express the Warrant Price per share and the number of
shares which were expressed upon the initial Warrant Certificates issued
hereunder.
(o) Anything in this Article III to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Warrant Price, in addition to those adjustments required by this Article III, as
it in its sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the shares of [Common] [Preferred] Stock,
issuance wholly for cash of any shares of [Common] [Preferred] Stock at less
than the current market price, issuance wholly for cash of shares of [Common]
[Preferred] Stock or securities which by their terms are convertible into or
exchangeable for Common Stock, stock dividend, issuance of rights, options or
warrants referred to hereinabove in this Article III, or other event referred to
hereinabove in this Article III treated for Federal income tax purposes as a
dividend of stock or stock rights, hereinafter made by the Company to its common
shareholders, shall not be taxable to the recipients.
[SECTION 3.2. Adjustment of shares of [Common] [Preferred]
Stock Purchasable Upon Exercise of Warrants. The number of Warrant Securities
that may be purchased upon exercise of a Warrant shall be determined by
multiplying the number of shares of [Common] [Preferred] Stock which would
otherwise (but for the provisions of this Section 3.2) be issuable upon such
exercise by a fraction of which (a) the numerator is and (b) the denominator is
$ minus deductions made from (and/or plus additions to) the Warrant Price
pursuant to Sections 3.1(a) or (c) hereof. The Warrant Price per share of
[Common] [Preferred] Stock shall be adjusted and readjusted from time to time as
provided in this Article III and, as so adjusted or readjusted, shall remain in
effect until a further adjustment or readjustment thereof is required by this
Article III.]
SECTION 3.3. Statements on Warrants. The form of Warrant
Certificate need not be changed because of any adjustment made pursuant to this
Article III, and Warrant Certificates issued after such adjustment may state the
same Warrant Price and the same number of shares of [Common] [Preferred] Stock
as are stated in the Warrant Certificates initially issued pursuant to this
Agreement. The Company, however, may at any time in its sole discretion (which
shall be conclusive) make any change in the form of Warrant Certificate that it
may deem appropriate and that does not affect the substance thereof, and any
Warrant Certificate thereafter issued or countersigned, whether in exchange or
substitution for an outstanding Warrant Certificate or otherwise, may be in the
form as so changed.
<PAGE>
13
ARTICLE IV.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 4.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to vote at, or to
receive notice of, any meeting of shareholders of the Company; the consent of
action or proceeding of the Company; no such holder, by reason of the ownership
or possession of a Warrant or the Warrant Certificate representing the same,
either at, before or after exercising such Warrant, shall have any right to
receive any cash dividends, stock dividends, allotments or rights, or other
distributions (except as specifically provided herein), paid, allotted or
distributed or distributable to the stockholders of the Company prior to the
date of the exercise of such Warrant; and no such holder shall have any right
not expressly conferred by the Warrant or Warrant Certificate that such holder
holds.
SECTION 4.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company of the ownership of and the loss, theft,
destruction or mutilation of any Warrant Certificate and of indemnity reasonably
satisfactory to the Warrant Agent and the Company, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for cancellation, then,
in the absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and evidencing a like number of Warrants. Upon the issuance of any
new Warrant Certificate under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 4.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants
<PAGE>
14
evidenced by his Warrant Certificate in the manner provided in his Warrant
Certificate and in this Agreement.
SECTION 4.4. Reclassification, Consolidation, Merger, Share
Exchange, Sale or Conveyance. In case any of the following shall occur while any
Warrants are outstanding: [(a) any reclassification or change of the outstanding
shares of Warrant Securities (other than a change in par value, or from par
value to no par value, or as a result of a subdivision or combination of the
Warrant Securities);] or (b) any consolidation, merger, share exchange or
combination of the Company with or into another corporation (other than a merger
or consolidation of the Company in which the Company is the continuing
corporation and which does not result in any reclassification or change of
outstanding shares of [Common] [Preferred] Stock) as a result of which holders
of Warrant Securities shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Warrant Securities; or (c) any sale or conveyance of the property or assets of
the Company as, or substantially as, an entirety to any other entity as a result
of which holders of Warrant Securities shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Warrant Securities; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the holders of the Warrants
then outstanding shall have the right at any time thereafter, upon exercise of
such Warrants, to receive the kind and amount of shares of stock and other
securities and property or assets receivable upon such reclassification, change,
consolidation, merger, share exchange, combination, sale or conveyance [(or at
the option of the Company, a sum equal to the value thereof at the time of the
distribution as determined by the Board of Directors in its sole discretion)] as
would be received by a holder of the number of shares of Warrant Securities
issuable upon exercise of such Warrant immediately prior to such
reclassification, change, consolidation, share exchange, merger, sale or
conveyance, and, in the case of a consolidation, merger, share exchange, sale or
conveyance the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name, in
fulfillment of its obligations to deliver Warrant Securities upon exercise of
the Warrants. All the Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Warrants theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Warrants had been issued at the date of the execution hereof. In any
case of any such reclassification, change, consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such reclassification, change, merger,
share exchange, consolidation, sale or conveyance complies with the provisions
of this Section 4.4.
<PAGE>
15
ARTICLE V.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES
SECTION 5.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security on the register of the
Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants or the transfer thereof may be registered in whole or in part; provided
that such other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant Agent shall
keep, at its corporate trust office [and at ], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ] for exchange or registration of transfer, properly endorsed
or accompanied by appropriate instruments of registration of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent. No service charge shall be made for any exchange or
registration of transfer of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange or
registration of transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer, an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange or registration of transfer which will result in
the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange or registration of transfer of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange or registration of transfer.
SECTION 5.2. Treatment of Holders of Warrant Certificates. [If
Offered Securities and Warrants are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the owner of the Offered Security as the owner of the Warrant Certificates
initially attached thereto for any purpose or as the person entitled to exercise
the rights represented by the Warrants evidenced by such Warrant Certificates,
any notice to the contrary notwithstanding. After the Detachable Date, and]
[P]rior to due presentment of a Warrant Certificate for registration of
transfer, the Company, the Warrant Agent and all other persons may treat the
holder of a Warrant
<PAGE>
16
Certificate as the owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
SECTION 5.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange, registration of transfer or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly canceled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE VI.
CONCERNING THE WARRANT AGENT
SECTION 6.1. Warrant Agent. The Company hereby appoints
[Warrant Agent] as Warrant Agent of the Company in respect of the Warrants and
the Warrant Certificates upon the terms and subject to the conditions herein set
forth; and [Warrant Agent] hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby and such further powers and authority to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
All of the terms and provisions with respect to such powers and authority
contained in the Warrant Certificates are subject to and governed by the terms
and provisions hereof.
SECTION 6.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust
<PAGE>
17
for or with any of the holders of Warrant Certificates or beneficial owners of
Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company
<PAGE>
18
pursuant to this Agreement or for the application by the Company of the proceeds
of the Warrant Certificates. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of its
covenants or agreements contained herein or in the Warrant Certificates or in
the case of the receipt of any written demand from a holder of a Warrant
Certificate with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except as provided in
Section 7.2 hereof, to make any demand upon the Company.
SECTION 6.3. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from
time to time of the Warrant Certificates, that there shall at all times be a
Warrant Agent hereunder until all the Warrants have been exercised or are no
longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 6.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or similar official) of the Warrant
Agent or of its property or affairs, or any public officer shall take charge or
control of the Warrant Agent or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and
<PAGE>
19
acceptance by the successor Warrant Agent of such appointment, the Warrant Agent
shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which substantially all the assets and business of the Warrant Agent have been
transferred, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VII.
[REDEMPTION;] [ACCELERATED SHARE CONVERSION
DATE AND] [CONVERSION OF WARRANTS INTO SHARES]
[SECTION 7.1. Redemption. The Company may, at its option, at
any time from and after , and at or prior to 5:00 p.m., [New York time], on the
earlier of the Scheduled Share Conversion Date or the Accelerated Share
Conversion Date (as defined in Section 7.2, redeem all but not less than all of
the then outstanding Warrants at a redemption price of $ per Warrant, subject to
adjustment pursuant to the provisions of Section 7.3(b). Such price, as the same
may be from time to time adjusted, is hereinafter referred to as the "Redemption
Price." If the Company should desire to exercise such right to redeem all of the
then outstanding Warrants, it will give notice of such redemption to the holders
thereof as follows:
Notice of such redemption to holders of Warrants shall be
mailed to all such holders not less than 30 nor more than 90 days prior to the
date fixed for redemption to their last addresses as they appear upon the
registry books of the Warrant Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will specify the date fixed for
redemption ("Redemption Date") and the Redemption Price. The notice will state
that payment of the Redemption Price will be made at the office or agency of the
Warrant Agent or at the option of the Company at a specified office of the
Company in the City of Dallas, State of Texas, upon presentation and surrender
of such Warrants, and will also state that the
<PAGE>
20
right to exercise the Warrants will terminate at the close of business on the
business day immediately preceding the Redemption Date.
On or before the Redemption Date, the Company shall deposit
with the Warrant Agent funds in form satisfactory to the Warrant Agent
sufficient to redeem the then outstanding Warrants at the Redemption Price.]
[SECTION 7.2. Accelerated Share Conversion Date. If the price
of a share of [Common] [Preferred] Stock (as determined pursuant to the second
sentence of Section 3.1(e)) for each of 10 consecutive trading days is at least
$ , subject to adjustment pursuant to the provisions of Section 7.3(b) (such
price, as the same may from time to time be adjusted, is hereinafter referred to
as the "Acceleration Price"), then the Company may, at its option, accelerate
the date on which the Warrants shall be converted into shares of [Common]
[Preferred] Stock and cease to be exercisable. If the Company shall so
accelerate such date, it shall give notice of such acceleration within 30 days
after the end of any such 10 consecutive trading day period to the holders of
Warrants as follows:
Notice of such acceleration shall be mailed to all holders of
Warrants not less than 30 nor more than 90 days prior to the date specified in
such notice as the date on which the Warrants shall be converted into shares of
[Common] [Preferred] Stock and cease to be exercisable (the "Accelerated Share
Conversion Date") to their last addresses as they appear upon the registry books
of the Warrant Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each such
notice of acceleration will specify the Accelerated Share Conversion Date and
the Acceleration Price.]
[SECTION 7.3. Conversion of Warrants into Shares. (a) To the
extent that any Warrant Certificates remain outstanding at the expiration of the
period during which the Warrants are exercisable, as set forth in Section 2.3(a)
hereof, the unexercised Warrants represented thereby shall be converted
automatically into shares of [Common] [Preferred] Stock at the rate of [ ]
share[s] of [Common] [Preferred] Stock for each [ ] Warrants. The registered
holders of such Warrant Certificates shall be deemed to have become holders of
record of such share or shares of [Common] [Preferred] Stock as of the date of
such conversion. If the number of shares of [Common] [Preferred] Stock
purchasable upon the exercise of each Warrant is adjusted pursuant to Section
3.2, the rate at which shares of [Common] [Preferred] Stock are issued upon such
conversion of unexercised Warrants at the expiration of the period during which
the Warrants are exercisable shall be adjusted in order that the total number of
shares of [Common] [Preferred] Stock issued for each [ ] unexercised Warrants at
such expiration equals the number of such shares purchasable upon the exercise
of each Warrant after such adjustment. Notwithstanding the foregoing provisions
of this Section 7.3, no fractional shares of [Common] [Preferred] Stock shall be
issuable upon such conversion. In lieu of fractional shares, there shall be paid
to the registered holders of Warrant Certificates at the time such Warrant
Certificates are so converted an amount in cash equal to the same fraction of
the current market value of a share of [Common] [Preferred] Stock. For the
purposes of this Section 7.3, the current market value of a share of [Common]
[Preferred] Stock shall be the closing price of a share of [Common] [Preferred]
Stock (as determined pursuant to the second sentence of Section 3.1(e)) for the
trading day immediately
<PAGE>
21
prior to the date of such conversion. After such conversion of outstanding and
unexercised Warrants into shares of [Common] [Preferred] Stock, the holder of
any Warrant Certificate representing such Warrants shall surrender the same to
the Warrant Agent (or, if this Agreement shall have been terminated, to the
transfer agent for shares of [Common] [Preferred] Stock) and such holder shall
be entitled, upon such surrender, to receive in exchange therefor a certificate
or certificates representing the number of whole shares of [Common] [Preferred]
Stock into which such Warrants shall have been converted as aforesaid and
payments as aforesaid for any fractional share represented thereby (without
interest). Unless and until so surrendered, such Warrant Certificates shall be
deemed for all purposes (subject to the further provisions of this paragraph) to
evidence the ownership of the whole number of shares of [Common] [Preferred]
Stock into which the Warrants evidenced thereby have been so converted. Unless
and until any such Warrant Certificate shall be so surrendered, dividends or
distributions payable to holders of record of shares of [Common] [Preferred]
Stock shall not be paid to the holder of any such Warrant Certificate not
surrendered, but there shall be paid to the record holder of such Warrant
Certificate, with respect to the shares of [Common] [Preferred] Stock issued
upon such conversion therefor, (i) upon such surrender the amount of the
dividends or distributions which shall theretofore have become payable thereon,
but without interest, and (ii) after such surrender, the amount of any dividend
or distribution with a record date prior to surrender and the payment date of
which shall be subsequent to surrender, such amount to be paid on such payment
date.
(b) Upon each adjustment of the Warrant Price of the Warrants,
the Redemption Price and the Acceleration Price in effect immediately prior to
the adjustment shall be adjusted to be a price equal to the product of the
Redemption Price or the Acceleration Price, as the case may be, in effect
immediately prior to the adjustment of the Warrant Price multiplied by a
fraction the numerator of which is the Warrant Price which was in effect
immediately after the adjustment of the Warrant Price and the denominator of
which is the Warrant Price immediately prior to such adjustment.]
SECTION 7.4. Notice of Proposed Actions. In case the Company
shall propose (a) to pay any dividend payable in stock of any class to the
holders of its Common [or Preferred] Stock or to make any other distribution to
the holders of its Common [or Preferred] Stock (other than a cash dividend), or
(b) to offer to the holders of its Common Stock rights or warrants to subscribe
for or to purchase any additional Common Stock or shares of stock of any class
or any other securities, rights or options, or (c) to effect any
reclassification of its Common [or Preferred] Stock (other than a
reclassification involving only the subdivision or combination of outstanding
Common [or Preferred] Stock), or (d) to effect any consolidation, merger, share
exchange or sale, transfer or other disposition of all or substantially all of
the property, assets or business of the Company, or (e) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Warrant, in accordance with Section
8.2, a notice of such proposed action, which shall specify the record date for
the purposes of such stock dividend, distribution or rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
disposition, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of Common [or Preferred] Stock, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (a) or (b) above at least ten days prior to the
record date for determining holders of the
<PAGE>
22
Common [or Preferred] Stock for purposes of such action, and in the case of any
such action, at least ten days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Common [or
Preferred] Stock, whichever shall be the earlier. The failure to give notice
required by this Section 7.4 or any defect therein shall not affect the legality
or validity of the action taken by the Company or the vote upon any such action.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. Amendment. (a) This Agreement and the Warrant
Certificates may be amended by the Company and the Warrant Agent, without the
consent of the registered holders of the Warrant Certificates or the Warrant
holders, for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective or inconsistent provision contained herein or
therein, for the purpose of appointing a successor Warrant Agent in accordance
with Section 6.3 or in any other manner which the Company may deem to be
necessary or desirable and which will not materially and adversely affect the
interests of the Warrant holders.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that decreases or increases the Warrant
Price, shortens the period of time during which the Warrants may be exercised,
or otherwise materially and adversely affects the exercise rights of the holders
or reduces the percentage of outstanding Warrants the consent of the holders of
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each Warrant holder affected
thereby.
SECTION 8.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 8.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent],
, Attention: and any communication from the Warrant Agent to the Company with
respect to this Agreement shall be addressed to EMCOR Group, Inc., 101 Merritt
Seven Corporate Park, Norwalk, CT 06851 (or such other address as shall be
specified in writing by the Warrant Agent or by the Company).
SECTION 8.4. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms
<PAGE>
23
and provisions thereof shall be governed by, and construed in accordance with,
the laws of the State of New York.
SECTION 8.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 8.6. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 8.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any legal or equitable
right, remedy or claim under or by reason of this Agreement.
SECTION 8.8. Headings. The descriptive headings of the
several Articles and
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 8.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 8.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
<PAGE>
24
IN WITNESS WHEREOF, EMCOR Group, Inc. and [Warrant Agent] have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
EMCOR GROUP, INC.
By _________________________
Title:
Attest:
- -------------------------
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
- -------------------------
Title:
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities with
Warrants which are not immediately
detachable.
Prior to _______________ this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not
immediately exercisable.
Prior to _______________, Warrants
evidence by this Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
TRITON ENERGY LIMITED
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY] TIME ON _______________
OR EARLIER IF NOTICE OF REDEMPTION OR ACCELERATION IS GIVEN
No. __________ __________ Warrants
This certifies that [the bearer is the] [ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the registered owner qualifying as a
"holder" of this Warrant Certificate, as hereinafter defined] to purchase, at
any time [after 5 P.M., [New York City] time, on and] on or before
[the earliest of (i)] 5 P.M. [New York City] time on , , [(ii) the
Accelerated Share Conversion Date as defined in the Warrant Agreement (referred
to herein) or (iii) the business day immediately prior to the Redemption Date as
defined in the Warrant Agreement,] [Common Stock, par value $.01 per share]
[Preferred Stock, par value $.10 per share] (the "Warrant Securities"), of EMCOR
Group, Inc. (the "Company"), issued and to be issued under the Warrant Agreement
(as hereinafter defined), on the following basis: during the period from ,
through and including the exercise price of each Warrant will be
$ per share; during the period from , through and including , ,
the exercise price of each Warrant will be $ per share (the "Warrant
Price"). No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant.
A-1
<PAGE>
The holder may exercise the Warrants evidenced hereby by
providing certain information set forth on the back hereof, including any
applicable certifications if the Warrant Securities are issuable in bearer form,
and by paying in full in lawful money of the United States of America [in cash
or by certified check or official bank check or by bank wire transfer, in each
case,] [by bank wire transfer] in immediately available funds, the Warrant Price
for each Warrant exercised to the Warrant Agent (as hereinafter defined) and by
surrendering this Warrant Certificate, with the purchase form on the back hereof
duly executed, at the corporate trust office of [Warrant Agent], or its
successor as warrant agent (the "Warrant Agent"), [or ] currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Warrant Agreement (as hereinafter
defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior to
(the "Detachable Date"), the registered owner of the Company's [title of Offered
Securities] to which this Warrant Certificate is initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 5.1 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of (the "Warrant Agreement") between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to , this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may be registered when this Warrant Certificate is surrendered at
the corporate trust office of the Warrant Agent [or ] by the registered
owner or his assigns, in person or by an attorney duly authorized in writing, in
the manner and subject to the limitations provided in the Warrant Agreement.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant
A-2
<PAGE>
Certificate may be exchanged at the corporate trust office of the Warrant Agent
[or ] for Warrant Certificates representing the same aggregate number of
Warrants.
The Warrants evidenced by this Certificate may be redeemed by
the Company at its option at any time from and after [ ] but before they are
converted into [Common] [Preferred] Stock, at a redemption price of [ ] per
Warrant subject to adjustment, in accordance with the terms of the Warrant
Agreement.
If the price of a share of [Common] [Preferred] Stock
(determined in accordance with the Warrant Agreement) for each of 10 consecutive
trading days is at least [ ] (subject to adjustment as provided in the Warrant
Agreement), the Company may, at its option, accelerate the date on which the
Warrants shall be converted into [Common] [Preferred] Stock and cease to be
exercisable.
If the Warrants evidenced by this Warrant Certificate remain
outstanding at the expiration of the period during which Warrants are
exercisable, as set forth in the first paragraph of this Warrant Certificate,
such Warrants shall thereupon be converted into [ ] shares of [Common]
[Preferred] Stock for each [ ] unexercised Warrants hereunder (subject to
adjustments as provided in the Warrant Agreement). After such conversion of
outstanding Warrants represented by this Warrant Certificate into shares of
[Common] [Preferred] Stock, the holder of this Warrant Certificate shall
surrender the same to the Warrant Agent (or, if the Warrant Agreement shall have
been terminated, to the transfer agent for [Common] [Preferred] Stock) and the
holder shall be entitled, upon such surrender, to receive in exchange therefor a
certificate or certificates representing the number of whole shares of [Common]
[Preferred] Stock into which such Warrants shall have been converted as
aforesaid. Unless and until so surrendered, this Warrant Certificate shall be
deemed for all purposes (subject to the further provisions of this paragraph) to
evidence the ownership of the whole number of shares of [Common] [Preferred]
Stock into which the Warrants evidenced thereby have been so converted. Unless
and until this Warrant Certificate shall be so surrendered, dividends or
distributions payable to holders of record of Common Stock shall not be paid to
the holder of this Warrant Certificate, but there shall be paid to the record
holder of this Warrant Certificate, with respect to the [Common] [Preferred]
Stock issued upon such conversion therefor, (i) upon such surrender, the amount
of the dividends or distributions which shall theretofore have become payable
thereon, but without interest, and (ii) after such surrender, the amount of any
dividend or distribution with a record date prior to surrender and the payment
date of which shall be subsequent to surrender, such amount to be paid on such
payment date.
No holder of this Warrant Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of [Common]
[Preferred] Stock or of any other securities of the Company which may at any
time be issuable on the exercise or conversion thereof, nor shall anything
contained in the Warrant Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or any
right to vote upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issue of stock, reclassification of stock, change of par
value, consolidation, share exchange, merger, conveyance, or otherwise) or,
except as provided in the Warrant
A-3
<PAGE>
Agreement, to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant or Warrants evidenced by
this Warrant Certificate shall have been exercised or converted as provided in
the Warrant Agreement.
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of _______________
EMCOR Group, Inc.
By: __________________________
Attest:
- -----------------------------
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. [or ], which [payment]
[wire transfer] must specify the name of the holder and the number of Warrants
exercised by such holder. In addition, the holder must complete the information
required below, including any applicable certifications if the Warrant
Securities are issuable in bearer form, and present this Warrant Certificate in
person or by mail (certified or registered mail is recommended) to the Warrant
Agent at the appropriate address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent within five
business days of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase [Common Stock]
[Preferred Stock] of American Express Company (the "Warrant Securities") and
represents that he has tendered payment for such Warrant Securities in Dollars
[in cash or by certified check or official bank check or by bank wire transfer,
in each case] [by bank wire transfer] in immediately available funds to the
order of Triton Energy Limited, c/o [insert name and address of Warrant Agent],
in the amount of in accordance with the terms hereof. The undersigned
requests that said principal amount of Warrant Securities be in fully registered
form in the authorized denominations, registered in such names and delivered all
as specified in accordance with the instructions set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
A-5
<PAGE>
Dated: ____________________ Name__________________________
______________________________ Address_______________________
(Insert Social Security or Other
Identifying Number of Holder) ________________________
Signature Guaranteed Signature_____________________
_____________________________ (Signature must conform in all
respects to name of holder as
specified on face of
this Warrant Certificate and
must bear a signature
guarantee by a bank, trust
company or member broker of
the New York, Midwest or
Pacific Stock Exchanges)
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
___________________________________
___________________________________
By mail at ___________________________________
___________________________________
___________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-6
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto
- ------------------------------
(Please print name)
- ------------------------------
(Address)
- ------------------------------
(City, including zip code)
- ------------------------------
(Please insert social security
or other identifying number)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
------------------------------
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Warrant Certificate and must bear
a signature guarantee by a bank,
trust company or member broker of
the New York, Midwest or Pacific
Stock Exchange)
Signature Guaranteed
- ------------------------------
A-7
<PAGE>
Exhibit 4.6
EMCOR GROUP, INC.
and
[WARRANT AGENT]
As Warrant Agent
--------------
Warrant Agreement -- Debt Securities
Dated as of , 199_
--------------
<PAGE>
EMCOR GROUP, INC.
Form of Debt Warrant Agreement*
THIS WARRANT AGREEMENT dated as of , 199_ between EMCOR Group,
Inc., a Delaware company (hereinafter called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to) and , as
Warrant Agent (herein called the "Warrant Agent").
WHEREAS, the Company has entered into an indenture (the
"[Senior] [Senior Subordinated] [Subordinated] Indenture") dated as of [FOR
SENIOR DEBT: , between the Company and , as trustee
(the "Senior Trustee")] [FOR SENIOR SUBORDINATED DEBT: , between
the Company and , as trustee (the "Senior Subordinated
Trustee") [FOR SUBORDINATED DEBT: , between the Company and
, as trustee (the "Subordinated Trustee")], providing for the issuance
from time to time of its unsecured [senior] [senior subordinated] [subordinated]
debentures, notes or other evidences of indebtedness (the "[Senior] [Senior
Subordinated] [Subordinated] Debt Securities"), to be issued in one or more
series as provided in the [Senior] [Senior Subordinated] [Subordinated]
Indenture; [if Warrant Securities are not under same Indenture as Debt
Securities to which they are attached -- and an Indenture (the "[Senior] [Senior
Subordinated] [Subordinated] Indenture," the Senior, Senior Subordinated and
Subordinated Indentures being referred to collectively as the "Indentures")
dated as of between the Company and , as trustee (the "[Senior] [Senior
Subordinated] [Subordinated] Trustee," (the Senior, Senior Subordinated and
Subordinated Trustees being referred to collectively as the "Trustee"),
providing for the issuance from time to time of its [senior] [senior
subordinated] [subordinated] debentures, notes or other evidences of
indebtedness (the "[Senior] [Senior Subordinated] [Subordinated] Debt
Securities", the [Senior] [Senior Subordinated] and [Subordinated] Debt
Securities being referred to collectively as the "Debt Securities"), to be
issued in one or more series as provided in the [
] Indenture]; and
WHEREAS, the Company proposes to sell [if Warrants are sold
with Debt Securities or Preferred Stock -- [title of Debt Securities or
Preferred Stock being offered] (the "Offered Securities") with] warrant
certificates evidencing one or more warrants (the "Warrants" or individually a
"Warrant") representing the right to purchase [title of Debt Securities
purchasable through exercise of Warrants] (the "Warrant Securities"), such
warrant certificates and other warrant certificates issued pursuant to this
Agreement being herein called the "Warrant Certificates"; and
- --------
* Complete or modify the provisions of this Form as appropriate to
reflect the terms of the Warrants, Warrant Securities and Offered
Securities.
<PAGE>
2
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Warrant Certificates, and in this Agreement wishes to set
forth, among other things, the form and provisions of the Warrant Certificates
and the terms and conditions on which they may be issued, exchanged, exercised
and replaced;
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I.
ISSUANCE OF WARRANTS AND EXECUTION AND
DELIVERY OF WARRANT CERTIFICATES
SECTION 1.1. Issuance of Warrants. [If Warrants alone -- Upon
issuance, each Warrant Certificate shall evidence one or more Warrants.] [If
Offered Securities and Warrants -- Warrants shall be [initially] issued in
connection with the issuance of the Offered Securities [but shall be separately
transferable on and after (the "Detachable Date")] [and shall
not be separately transferable] and each Warrant Certificate shall evidence one
or more Warrants.] Each Warrant evidenced thereby shall represent the right,
subject to the provisions contained herein and therein, to purchase a Warrant
Security in the principal amount of . [If Offered Securities and
Warrants -- Warrant Certificates shall be initially issued in units with the
Offered Securities and each Warrant Certificate included in such a unit shall
evidence Warrants for each [ principal amount]
[ shares] of Offered Securities included in such unit.]
SECTION 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in [registered] [bearer]
form substantially in the form set forth in Exhibit A hereto, shall be dated
and may have such letters, numbers, or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be listed, or to
conform to usage. The Warrant Certificates shall be executed on behalf of the
Company by [the Chairman of the Board, the President, any Senior Vice President
or any Vice President and by the Secretary or any Assistant Secretary] under its
corporate seal reproduced thereon. Such signatures may be manual or facsimile
signatures of such authorized officers and may be imprinted or otherwise
reproduced in the Warrant Certificates. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificates shall be valid for any purpose, and no
Warrant evidenced thereby shall be exercisable, until such Warrant Certificate
has been countersigned by the manual signature of the Warrant Agent. Such
signature by the Warrant Agent upon
<PAGE>
3
any Warrant Certificate executed by the Company shall be conclusive evidence
that the Warrant Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Warrant Certificates either manually or by facsimile signature shall
cease to be such officer before the Warrant Certificates so signed shall have
been countersigned and delivered by the Warrant Agent, such Warrant Certificates
may be countersigned and delivered notwithstanding that the person who signed
such Warrant Certificates ceased to be such officer of the Company; and any
Warrant Certificate may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as used
herein shall mean [the bearer of such Warrant Certificate] [any person in whose
name at the time any Warrant Certificate shall be registered upon the books to
be maintained by the Warrant Agent for that purpose] [If Offered Securities and
Warrants are not immediately detachable -- or [the bearer] [upon the register]
of the Offered Securities prior to the Detachable Date. [Prior to the Detachable
Date, the Company will, or will cause the registrar of the Offered Securities
to, make available at all times to the Warrant Agent such information as to
holders of the Offered Securities with Warrants as may be necessary to keep the
Warrant Agent's records up to date]].
SECTION 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate principal amount not
exceeding aggregate principal amount of Warrant Securities (except as provided
in Sections 1.4, 2.3(c), 3.2 and ) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, countersign Warrant
Certificates evidencing Warrants representing the right to purchase up to
principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such issuance of
the Warrant Certificates, the Warrant Agent shall countersign a Warrant
Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously countersigned Warrant Certificates or in
connection with their transfer, as hereinafter provided or as provided in
Section 2.3(c).
SECTION 1.4. Temporary Warrant Certificate. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company, the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificate in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
<PAGE>
4
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ], without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company shall
execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
ARTICLE II.
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANTS
SECTION 2.1. Warrant Price. During the period from ,
through and including , the exercise price of each Warrant shall
be plus [accrued amortization of the original issue discount]
[accrued interest] from . During the period from ,
through and including , the exercise price of each Warrant will be plus
[accrued amortization of the original issue discount] [accrued interest] from .
[In each case, the original issue discount will be amortized at a % annual
rate, computed on an annual basis using the "interest" method and using a
360-day year consisting of twelve 30-day months]. Such purchase price of
Warrant Securities is referred to in this Agreement as the "Warrant Price".
[The original issue discount for each principal amount of Warrant
Securities is .]
SECTION 2.2. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after [the date
thereof] [ ] and at or before 5 P.M., [New York City time], on
[or such later date as the Company may designate, by notice to the Warrant Agent
and the holders of Warrant Certificates mailed to their addresses as set forth
in the record books of the Warrant Agent] (the "Expiration Date"). Each Warrant
not exercised at or before 5 P.M., [New York City time], on the Expiration Date
shall become void, and all rights of the holder of the Warrant Certificate
evidencing such Warrant under this Agreement shall cease.
SECTION 2.3. Exercise of Warrants. (a) During the period
specified in Section 2.2 any whole number of Warrants may be exercised by
providing certain information as set forth on the reverse side of the Warrant
Certificate and by paying in full, in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] [in immediately available
funds] the Warrant Price for each Warrant exercised, to the Warrant Agent at its
corporate trust office [or at ], provided that such exercise is subject to
receipt within five business days of such [payment] [wire transfer] by the
Warrant Agent of the Warrant Certificate with the form of election to purchase
Warrant Securities set forth on the reverse side of the Warrant Certificate
properly completed and duly executed [including any applicable certifications if
the Warrant Securities are issuable in bearer form]. The date on
<PAGE>
5
which payment in full of the Warrant Price is received by the Warrant Agent
shall, subject to receipt of the Warrant Certificate as aforesaid, be deemed to
be the date on which the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in an account of the
Company maintained with it and shall advise the Company by telephone at the end
of each day on which a [payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephone advice to the Company in writing.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the [Trustee under the Indenture relating to
the Warrant Securities] of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Warrant Securities to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise, and (iv)
such other information as the Company or such Trustee shall reasonably require.
(c) As promptly as practicable after the exercise of any
Warrant, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Warrant Certificate
evidencing such Warrant, the Warrant Securities to which such holder is
entitled, in fully registered form, registered in such name or names as may be
directed by such holder. If fewer than all of the Warrants evidenced by such
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and deliver, a new
Warrant Certificate evidencing the number of such Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issue of the Warrant Securities, and in the event
that any such transfer is involved, the Company shall not be required to issue
or deliver any Warrant Security until such tax or other charge shall have been
paid or it has been established to the Company's satisfaction that no such tax
or other charge is due.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
SECTION 3.1. No Rights as Warrant Securityholder Conferred by
Warrants or Warrant Certificates. No Warrant Certificates or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of
Warrant Securities, including, without limitation, the right to receive the
payment of principal of, premium, if any, or interest on Warrant Securities or
to enforce any of the covenants in the Indenture relating to the Warrant
Securities.
SECTION 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence reasonably
satisfactory to it and the Company
<PAGE>
6
of the Ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity reasonably satisfactory to the Warrant
Agent and the Company, and, in the case of mutilation, upon surrender thereof to
the Warrant Agent for cancellation, then, in the absence of notice to the
Company or the Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, the Company shall execute, and an authorized officer of
the Warrant Agent shall manually countersign and deliver, in exchange for or in
lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and evidencing a like number of Warrants.
Upon the issuance of any new Warrant Certificate under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and delivered pursuant
to this Section in lieu of any lost, stolen or destroyed Warrant Certificate
shall represent an additional contractual obligation of the Company, whether or
not the lost, stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 3.3. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of a Warrant
Certificate, without the consent of the Warrant Agent, the Trustee, the holder
of any Warrant Securities or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company suitable to enforce,
or otherwise in respect of, his right to exercise the Warrants evidenced by his
Warrant Certificate in the manner provided in his Warrant Certificate and in
this Agreement.
SECTION 3.4. Consolidation, Merger, Sale or Conveyance. If at
any time there shall be a consolidation merger, sale or conveyance to which
Article of the Indenture relating to the Warrant Securities applies, then in any
such event the successor or assuming corporation referred to therein shall
succeed to and be substituted for the Company, with the same effect, subject to
such Indenture, as if it had been named herein and in the Warrant as the
Company; the Company shall thereupon be relieved of any further obligation
hereunder or under the Warrants, and the Company as the predecessor corporation
may thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Warrants issuable hereunder which theretofore shall not have been signed by the
Company, and may execute and deliver Warrant Securities in its own name pursuant
to such Indenture, in fulfillment of its obligations to deliver Warrant
Securities upon exercise of the Warrants. All the Warrants so issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Warrants theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Warrants had been issued at the date of the
execution hereof. In any case of any such consolidation, merger, sale or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrants thereafter to be issued as may be appropriate.
<PAGE>
7
The Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance complies with the provisions of this Section 3.4 and such Indenture.
ARTICLE IV.
EXCHANGE AND TRANSFER
OF WARRANT CERTIFICATES.
SECTION 4.1. Exchange and Transfer of Warrant Certificates,
[If Offered Securities with Warrants which are immediately detachable -- Upon]
[If Offered Securities with Warrants which are not immediately detachable --
Prior to the Detachable Date a Warrant Certificate may be exchanged or
transferred only together with the Offered Security to which the Warrant
Certificate was initially attached, and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered Security. Prior to any
Detachable Date, each transfer of the Offered Security on the register of the
Offered Securities shall operate also to transfer the related Warrant
Certificates. After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ], Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants [or the transfer thereof may be registered in whole or in part];
provided that such other Warrant Certificates evidence the same aggregate number
of Warrants as the Warrant Certificates so surrendered. [The Warrant Agent shall
keep, at its corporate trust office [and at ], books in which, subject to such
reasonable regulations as it may prescribe, it shall register Warrant
Certificates and exchanges and transfers of outstanding Warrant Certificates,
upon surrender of the Warrant Certificates to the Warrant Agent at its corporate
trust office [or ] for exchange or registration of transfer, properly endorsed
or accompanied by appropriate instruments of registration of transfer and
written instructions for transfer, all in form satisfactory to the Company and
the Warrant Agent.] No service charge shall be made for any exchange [or
registration of transfer] of Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange [or
registration of transfer]. Whenever any Warrant Certificates are so surrendered
for exchange [or registration of transfer], an authorized officer of the Warrant
Agent shall manually countersign and deliver to the person or persons entitled
thereto a Warrant Certificate or Warrant Certificates duly authorized and
executed by the Company, as so requested. The Warrant Agent shall not be
required to effect any exchange [or registration of transfer] which will result
in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a
number of full Warrants and a fraction of a Warrant. All Warrant Certificates
issued upon any exchange [or registration of transfer] of Warrant Certificates
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Warrant
Certificate surrendered for such exchange [or registration of transfer].
SECTION 4.2. Treatment of Holders of Warrant Certificates.
[If Offered Securities and Warrants are not immediately detachable -- Prior to
the Detachable Date, the Company, the Warrant Agent and all other persons may
treat the owner of the Offered
<PAGE>
8
Security as the owner of the Warrant Certificates initially attached thereto for
any purpose or as the person entitled to exercise the rights represented by the
Warrants evidenced by such Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date,] [if registered Warrants -- and
prior to due presentment of a Warrant Certificate for registration of transfer,]
the Company, the Warrant Agent and all other persons may treat the holder of a
Warrant Certificate as the owner thereof for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced thereby,
any notice to the contrary notwithstanding.
SECTION 4.3. Cancellation of Warrant Certificates. Any Warrant
Certificates surrendered for exchange[, registration of transfer] or exercise of
the Warrants evidenced thereby shall, if surrendered to the Company, be
delivered to the Warrant Agent and all Warrant Certificates surrendered or so
delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by this Agreement,
no Warrant Certificate shall be issued hereunder in exchange or in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of cancelled Warrant Certificates in a manner satisfactory to the
Company.
ARTICLE V.
CONCERNING THE WARRANT AGENT.
SECTION 5.1. Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the Warrants and the Warrant
Certificates upon the terms and subject to the conditions herein set forth; and
hereby accepts such appointment. The Warrant Agent shall have the powers
and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
SECTION 5.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including counsel fees) incurred by the
Warrant Agent in connection with the services rendered hereunder by the Warrant
Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Warrant Agent, arising out of or in connection
with its acting as Warrant
<PAGE>
9
Agent hereunder, as well as the costs and expenses of defending against any
claim of such liability.
(b) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of
agency or trust for or with any of the holders of Warrant Certificates or
beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory to
it, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest in,
Warrants, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of Warrant Securities or other obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in the Warrant
Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee
under any of the Indentures.
(f) No Liability for Interest. Unless otherwise agreed with the
Company, the Warrant Agent shall have no liability for interest on any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent shall have no
liability with respect to any invalidity of this Agreement or any of the Warrant
Certificates (except as to the Warrant Agent's countersignature thereon).
(h) No Responsibility for Representations. The Warrant Agent shall not
be responsible for any of the recitals or representations herein or in the
Warrant Certificates (except as to the Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the
<PAGE>
10
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the case of the receipt of any written demand from a holder
of a Warrant Certificate with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to initiate
or attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 6.2 hereof, to make any demand upon the Company.
SECTION 5.3. Resignation and Appointment of Successor. (a) The
Company agrees, for the benefit of the holders from time to time of the Warrant
Certificates, that there shall at all times be a Warrant Agent hereunder until
all the Warrants have been exercised or are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided that
such date shall not be less than three months after the date on which such
notice is given unless the Company otherwise agrees. The Warrant Agent hereunder
may be removed at any time by the filing with it of an instrument in writing
signed by or on behalf of the Company and specifying such removal and the date
when it shall become effective. Such resignation or removal shall take effect
upon the appointment by the Company, as hereinafter provided, of a successor
Warrant Agent (which shall be a bank or trust company authorized under the laws
of the jurisdiction of its organization to exercise corporate trust powers) and
the acceptance of such appointment by such successor Warrant Agent. The
obligation of the Company under Section 5.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or under any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to the
appointment of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Warrant Agent
or its property or affairs, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall take corporate action in furtherance of any such
action, or a decree or order for relief by a court having jurisdiction in the
premises shall have been entered in respect of the Warrant Agent in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or State bankruptcy, insolvency or
similar law; or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of
<PAGE>
11
a receiver, custodian, liquidator, assignee, trustee, sequestrator (or similar
official) of the Warrant Agent or of its property or affairs, or any public
officer shall take charge or control of the Warrant Agent or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, a successor Warrant Agent, qualified as aforesaid, shall be
appointed by the Company by an instrument in writing, filed with the successor
Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent
and acceptance by the successor Warrant Agent of such appointment, the Warrant
Agent shall cease to be Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named Warrant
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may
be merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which substantially all the assets and business of the Warrant Agent have been
transferred, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. Amendment. (a) This Agreement may be amended by
the parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of curing, correcting
or supplementing any defective provision contained herein, or making any other
provisions with respect to matters or questions arising under this Agreement as
the Company and the Warrant Agent may deem necessary or desirable; provided that
such action shall not affect adversely the interests of the holders of the
Warrant Certificates.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of not fewer than a
majority in number of the then outstanding unexercised Warrants affected by such
modification or amendment, for any purpose; provided, however, that no such
modification or amendment that decreases or increases the Exercise Price,
shortens the period of time during which the Warrants may be exercised or
otherwise materially and adversely affects the exercise rights of the Holders or
reduces the percentage of outstanding Warrants the consent of the holder of
<PAGE>
12
which is required for modification or amendment of this Agreement or the Warrant
Certificates, may be made without the consent of each holder affected thereby.
SECTION 6.2. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the holder of a Warrant Certificate pursuant to the provisions of the
Warrant Certificates, the Warrant Agent shall promptly forward such notice or
demand to the Company.
SECTION 6.3. Addresses. Any communication from the Company
to the Warrant Agent with respect to this Agreement shall be addressed to
[Warrant Agent], ,Attention: and any communication from the
Warrant Agent to the Company with respect to this Agreement shall be addressed
to EMCOR Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, CT, 06851 (or
such other address as shall be specified in writing by the Warrant Agent or by
the Company).
SECTION 6.4. Applicable Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder and
of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 6.5. Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of the Warrants (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
will deliver to the holder of the Warrant Certificate evidencing such Warrant,
prior to or concurrently with the delivery of the Warrant Securities issued upon
such exercise, a Prospectus. The Warrant Agent shall not, by reason of any such
delivery, assume any responsibility for the accuracy or adequacy of such
Prospectus.
SECTION 6.6. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Warrants and Warrant Securities under the Securities Act of 1933), which may
be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Securities issued upon exercise of the Warrant
Certificates, the exercise of the Warrants, the issuance, sale, transfer and
delivery of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 6.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than the Company, the
Warrant Agent and the holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement.
SECTION 6.8. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
<PAGE>
13
SECTION 6.9. Counterparts. This Agreement may be executed
in any number of counterparts, each of which as so executed shall be deemed to
be an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his Warrant
Certificate for inspection by it.
IN WITNESS WHEREOF, EMCOR Group, Inc. and [Warrant Agent] have
caused this Agreement to be signed by their respective duly authorized officers,
and their respective corporate seals to be affixed hereunto, and the same to be
attested by their respective Secretaries or one of their respective Assistant
Secretaries, all as of the day and year first above written.
EMCOR GROUP, INC.
By _________________________
Title:
Attest:
________________________
Title:
[WARRANT AGENT]
By _________________________
Title:
Attest:
________________________
Title:
<PAGE>
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[Form of Legend if Offered Securities with
Warrants which are not immediately
detachable.
Prior to _______________ this Warrant Certificate cannot be transferred or
exchanged unless attached to a [Title of Offered Securities].]
[Form of Legend if Warrants are not
immediately exercisable.
Prior to _______________, Warrants
evidence by this Warrant Certificate cannot
be exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
EMCOR GROUP, INC.
WARRANTS TO PURCHASE
[Title of Warrant Securities]
VOID AFTER 5 P.M. [NEW YORK CITY TIME], ON _______________
No. __________ __________ Warrants
This certifies that [the bearer is the] [ or registered
assigns is the registered] owner of the above indicated number of Warrants, each
Warrant entitling such owner [if Offered Securities with Warrants which are not
immediately detachable -- , subject to the [bearer] [registered owner]
qualifying as a "holder" of this Warrant Certificate, as hereinafter defined] to
purchase, at any time [after 5 P.M., [New York City time], on and]
on or before 5 P.M., [New York City time], on , principal
amount of [Title of Warrant Securities] (the "Warrant Securities"), of EMCOR
Group, Inc. (the "Company"), issued and to be issued under the Indenture (as
hereinafter defined), on the following basis: during the period from ,
through and including the exercise price of each Warrant will
be plus [accrued amortization of the original issue discount]
[accrued interest] from ; during the period from , through
and including , the exercise price of each Warrant will be
plus [accrued amortization of the original issue discount] [accrued interest]
from ; [in each case, the original issue discount will be amortized
at a % annual rate, computed on an annual basis using the "interest" method
and using a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each principal amount of
Warrant Securities is .] The holder may exercise the Warrants
evidenced hereby by providing certain information set forth on the back hereof,
A-1
<PAGE>
including any applicable certifications if the Warrant Securities are issuable
in bearer form, and by paying in full in lawful money of the United States of
America [in cash or by certified check or official bank check or by bank wire
transfer, in each case,] [by bank wire transfer] in immediately available funds,
the Warrant Price for each Warrant exercised to the Warrant Agent (as
hereinafter defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate trust office of
[Warrant Agent], or its successor as warrant agent (the "Warrant Agent"),
[or ] currently at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth herein and in
the Warrant Agreement (as hereinafter defined).
The term "holder" as used herein shall mean [if Offered
Securities with Warrants which are not immediately detachable -- , prior
to (the "Detachable Date"), the registered owner of the Company's
[title of Offered Securities] to which this Warrant Certificate is initially
attached, and after such Detachable Date,] [the bearer of this Warrant
Certificate] [the person in whose name at the time this Warrant Certificate
shall be registered upon the books to be maintained by the Warrant Agent for
that purpose pursuant to Section 4.1 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form
in denominations of and any integral multiples thereof. Upon any exercise of
fewer than all of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate evidencing the
number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at ].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an indenture (the "Indenture"), dated as of [FOR
SENIOR DEBT: , between the Company and The Chase Manhattan Bank]
[FOR SENIOR SUBORDINATED DEBT: , between the Company and United States
Trust Company of New York] [FOR SUBORDINATED DEBT: , between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Warrant Securities are on file at the corporate
trust office of the Trustee [and at ].
[If Offered Securities with Warrants which are not immediately
detachable -- Prior to , this Warrant Certificate may be exchanged or
transferred only together with the [Title of Offered Securities] ("Offered
Securities") to which this Warrant Certificate was initially attached, and only
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. After such date, this] [if Offered Securities with
Warrants which are immediately detachable -- Transfer of this] Warrant
Certificate may
A-2
<PAGE>
be registered when this Warrant Certificate is surrendered at the corporate
trust office of the Warrant Agent [or ] by the registered owner or
his assigns,in person or by an attorney duly authorized in writing, in the
manner and subject to the limitations provided in the Warrant Agreement.]
[effected by delivery and the Company and the Warrant Agent may treat the bearer
hereof as the owner for all purposes.]
[If Offered Securities with Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Securities with Warrants which are immediately detachable or
Warrants alone -- After] countersignature by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the corporate trust office of the Warrant Agent [or ]
for Warrant Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of the Warrant Securities, including, without
limitation, the right to receive payments of principal of, premium, if any, or
interest, if any, on the Warrant Securities or to enforce any of the covenants
of the Indenture.
A-3
<PAGE>
This Warrant Certificate shall not be valid or obligatory for
any purpose until countersigned by the Warrant Agent.
Dated as of ____________, 199_.
EMCOR GROUP, INC.
By: _____________________
Attest:
___________________________
Countersigned:
[WARRANT AGENT],
As Warrant Agent
By: _________________________
Authorized Signature
A-4
<PAGE>
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must pay
in Dollars [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Warrant
Price in full for Warrants exercised to [Warrant Agent], [corporate trust
department] [insert address of Warrant Agent], Attn. [or ], which
[payment] [wire transfer] must specify the name of the holder and the number of
Warrants exercised by such holder. In addition, the holder must complete the
information required below and present this Warrant Certificate in person or by
mail (certified or registered mail is recommended) to the Warrant Agent at the
appropriate address set forth below. This Warrant Certificate, completed and
duly executed, must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants, evidenced by this Warrant Certificate, to purchase
principal amount of the [Title of Warrant Securities ] (the "Warrant
Securities") of EMCOR Group, Inc. and represents that he has tendered payment
for such Warrant Securities in Dollars [in cash or by certified check or
official bank check or by bank wire transfer, in each case] [by bank wire
transfer] in immediately available funds to the order of EMCOR Group, Inc.,
c/o , [address of Warrant Agent], in the amount of in
accordance with the terms hereof. The undersigned requests that said principal
amount of Warrant Securities be in the authorized denominations, registered in
such names and delivered all as specified in accordance with the instructions
set forth below.
If the number of Warrants exercised is less than all of the
Warrants evidenced hereby, the undersigned requests that a new Warrant
Certificate representing the remaining Warrants evidenced hereby be issued and
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated: ____________________ Name_________________________________
______________________________ Address______________________________
(Insert Social Security or Other
Identifying Number of Holder) ______________________________
Signature___________________________
[If registered Warrant --
[If registered Warrant -- Signature (Signature must conform in
Granteed all respects to name of holder
______________________] as specified on face of this
Warrant Certificate and must
bear a signature guarantee by
a bank, trust company or
member broker of the New York,
Midwest or Pacific Stock
Exchanges)]
The Warrants evidenced hereby may be exercised at the
following addresses:
By hand at ___________________________________
_____________________________
_____________________________
_____________________________
By mail at ___________________________________
_____________________________
_____________________________
_____________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised Warrants --
complete as appropriate.]
A-5
<PAGE>
Assignment
[Form of Assignment To Be Executed If Holder
Desires To Transfer Warrants Evidenced Hereby]
FOR VALUE RECEIVED _____________________________ hereby sells,
assigns and transfers unto
______________________________ ______________________________
(Please print name) (Please insert social security
or other identifying number)
______________________________
(Address)
______________________________
(City, including zip code)
the Warrants represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint _______________ Attorney, to transfer said
Warrant Certificate on the Books of the Warrant Agent with full power of
substitution in the premises.
Dated:
_______________________
Signature
(Signature must
conform in all
respects to name of
holder as specified
on the face of this
Warrant Certificate
and must bear a
signature guarantee
by a bank, trust
company or member
broker of the New
York, Midwest or
Pacific Stock
Exchange)
Signature Guaranteed
______________________________
A-6
<PAGE>
Exhibit 5.1
[Letterhead of Simpson Thacher & Barlett]
February 6, 1998
EMCOR Group, Inc.
101 Merritt Seven Corporate Park
Norwalk, Connecticut 06851
Ladies and Gentlemen:
This opinion is delivered in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), by EMCOR Group, Inc., a Delaware corporation ("EMCOR"),
which Registration Statement constitutes Amendment No. 1 to Registration
Statement No. 333-44369 and relates to preferred stock, par value $.10 per share
("Preferred Stock"), common stock, par value $.01 per share ("Common Stock"),
unsecured debt securities consisting of notes, debentures or other evidences of
indebtedness ("Debt Securities") which may be senior, senior subordinated or
subordinated and warrants to purchase Preferred Stock, Common Stock or Debt
Securities ("Warrants"), to be issued and sold by EMCOR from time to time
pursuant to Rule 415 under the Act for an aggregate initial offering price not
to exceed $200 million together with any additional such securities that may be
sold pursuant to a Registration Statement filed under Rule 462 of the Act.
<PAGE>
EMCOR Group, Inc. -2- February 6, 1998
We have examined (i) the Registration Statement, (ii) the form of
Senior Indenture to be executed by EMCOR and the Trustee (the "Senior Debt
Indenture"), (iii) the form of Senior Subordinated Indenture to be executed by
EMCOR and the Trustee (the "Senior Subordinated Debt Indenture"), (iv) the form
of Subordinated Indenture to be executed by EMCOR and the Trustee (the
"Subordinated Debt Indenture") and (v) the form of Warrant Agreement to be
executed by EMCOR and the Warrant Agent (the "Warrant Agreement"). In addition,
we have examined, and have relied as to matters of fact upon originals or
copies, certified or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such certificates or
comparable documents of public officials and of officers and representatives of
EMCOR, and have made such other and further investigations as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
We have also assumed that (i) the Registration Statement, and any
amendments thereto (including post-effective amendments) and any additional
Registration Statement filed under Rule 462, will have become effective under
the Act, (ii) a prospectus supplement (a "Prospectus Supplement") will have been
prepared and
<PAGE>
EMCOR Group, Inc. -3- February 6, 1998
filed with the Commission describing the Preferred Stock, Common Stock, Debt
Securities and/or Warrants offered thereby, (iii) all Preferred Stock, Common
Stock, Debt Securities and Warrants issued will be issued and sold in compliance
with applicable federal and state securities laws and solely in the manner
stated in the Registration Statement and the appropriate Prospectus Supplement
and (iv) a definitive purchase, underwriting or similar agreement with respect
to any Preferred Stock, Common Stock, Debt Securities or Warrants offered will
have been duly authorized and validly executed and delivered by EMCOR and the
other parties thereto.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that:
1. With respect to Preferred Stock, when (i) the shares
of Preferred Stock to be issued have been duly authorized by the
shareholders of EMCOR, (ii) the Board of Directors of EMCOR (the "EMCOR
Board") has taken all necessary corporate action to approve the issuance
and terms of such Preferred Stock, the terms of the offering thereof and
related matters and (iii) such shares of Preferred Stock have been
issued and delivered in accordance with the provisions of the applicable
definitive purchase, underwriting or similar agreement approved by the
EMCOR Board, upon payment of the consideration therefor provided for
therein, such shares of Preferred Stock will be legally issued, fully
paid and nonassessable.
2. With respect to Common Stock, when (i) the shares of
Common Stock to be issued have been duly authorized by the shareholders
of EMCOR, (ii) the EMCOR Board has taken all necessary corporate action
to approve the issuance and terms of such Common Stock, the terms of the
offering thereof and related matters and (iii) such shares of Common
Stock have been issued and delivered in accordance with the provisions
of the applicable definitive purchase, underwriting or similar agreement
approved by the EMCOR Board, upon payment of the consideration therefor
provided for therein, such shares of Common Stock will be legally
issued, fully paid and nonassessable.
<PAGE>
EMCOR Group, Inc. -4- February 6, 1998
3. With respect to Debt Securities to be issued under the
Senior Debt Indenture, when (i) the Senior Debt Indenture has been duly
authorized and validly executed and delivered by EMCOR to the trustee,
(ii) the Senior Debt Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), (iii) the
EMCOR Board has taken all necessary corporate action to approve the
issuance and terms of such Debt Securities, the terms of the offering
thereof and related matters and (iv) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the
provisions of the Senior Debt Indenture and the applicable definitive
purchase, underwriting or similar agreement approved by the EMCOR Board,
upon payment of the consideration therefor provided for therein, such
Debt Securities will be legally issued by EMCOR and will constitute
valid and legally binding obligations of EMCOR, enforceable against
EMCOR in accordance with their terms.
4. With respect to Debt Securities to be issued under the
Senior Subordinated Debt Indenture, when (i) the Senior Subordinated
Debt Indenture has been duly authorized and validly executed and
delivered by EMCOR to the trustee, (ii) the Senior Subordinated Debt
Indenture has been duly qualified under the Trust Indenture Act, (iii)
the EMCOR Board has taken all necessary corporate action to approve the
issuance and terms of such Debt Securities, the terms of the offering
thereof and related matters and (iv) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the
provisions of the Senior Subordinated Debt Indenture and the applicable
definitive purchase, underwriting or similar agreement approved by the
EMCOR Board, upon payment of the consideration therefor provided for
therein, such Debt Securities will be legally issued by EMCOR and will
constitute valid and legally binding obligations of EMCOR, enforceable
against EMCOR in accordance with their terms.
5. With respect to Debt Securities to be issued under the
Subordinated Debt Indenture, when (i) the Subordinated Debt Indenture
has been duly authorized and validly executed and delivered by EMCOR to
the trustee, (ii) the Subordinated Debt Indenture has been duly
qualified under the Trust Indenture Act, (iii) the EMCOR Board has taken
all necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters
and (iv) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the
Subordinated Debt Indenture and the applicable definitive purchase,
underwriting or similar agreement approved by the EMCOR Board, upon
payment of the consideration therefor provided for therein, such Debt
Securities will constitute valid and legally binding obligations of
EMCOR, enforceable against EMCOR in accordance with their terms.
<PAGE>
EMCOR Group, Inc. -5- February 6, 1998
6. With respect to the Warrants, when (i) the EMCOR Board
has taken all necessary corporate action to approve the creation of and
issuance and terms of the Warrants, the terms of the offering thereof
and related matters, (ii) the Warrant Agreement relating to the Warrants
(the "Warrant Agreement") has been duly authorized and validly executed
and delivered by EMCOR and the Warrant Agent appointed by EMCOR and
(iii) the Warrants or certificates representing the Warrants have been
duly executed, countersigned, registered and delivered in accordance
with the Warrant Agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the EMCOR Board, upon
payment of the consideration therefor provided for therein, the Warrants
will be duly authorized and validly issued by EMCOR and will constitute
valid and legally binding obligations of EMCOR, enforceable against
EMCOR in accordance with their terms.
Our opinions set forth in paragraphs 3, 4 and 5 above are subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion of counsel as
Exhibit 5.1 to the Registration Statement and to the use of our name under the
caption "Legal Matters" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE>
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 28, 1997
included in EMCOR Group, Inc.'s Form 10-K for the year ended December 31, 1996
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Stamford, Connecticut
February 4, 1998
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
EMCOR Group, Inc. on Form S-3 of our report dated March 17, 1995, appearing in
the Annual Report on Form 10-K of EMCOR Group, Inc. for the year ended December
31, 1996 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
New York, New York
February 4, 1998
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM T-1
----------------------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF l939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
|_| CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
STATE STREET BANK AND TRUST COMPANY
-------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
---------------------------------- ----------------------------------
(State of incorporation if (I.R.S. Employer
not a national bank Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
-------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
John R. Towers, Executive Vice President and General Counsel,
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
-------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
EMCOR GROUP, INC.
-------------------------------------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware 11-2125338
- ---------------------------------- ----------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 Merritt Seven Corporate Park, Norwalk, Connecticut 06851
-------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Debt Securities
-------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item l. 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:
Department of Banking and Insurance of
The Commonwealth of Massachusetts
100 Cambridge Street
Boston, Massachusetts
Board of Governors of the Federal Reserve System
Washington, D.C.
Federal Deposit Insurance Corporation
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers:
The trustee is so authorized.
Item 2. Affiliations with obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
None with respect to the trustee or its parent, State Street
Corporation.
Item l6. List of exhibits. List below all exhibits filed as a part of
this statement of eligibility and qualification.
l. A copy of the Articles of Association of the trustee as now
in effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the Certificate of Authority of the trustee to do
Business.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities
-2-
<PAGE>
and Exchange Commission as Exhibit 2 to Amendment No. 1 to
the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
3. A copy of the Certification of Fiduciary Powers of the
Trustee.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the By-laws of the trustee as now in effect.
A copy of the By-Laws of the trustee, as now in effect, is
on file with the Securities and Exchange Commission as
Exhibit 4 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with Registration Statement of
Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
5. A consent of the trustee required by Section 32l(b) of the
Act is annexed hereto as Exhibit 5 and made a part hereof.
6. A copy of the latest Consolidated Reports of Condition of
the trustee, published pursuant to law or the requirements
of its supervising or examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 6 and made a part hereof.
-3-
<PAGE>
NOTES
Inasmuch as this Form T-l is filed prior to the ascertainment
by the trustee of all facts on which to base its answer to Item 2, the answer to
said Item is based upon incomplete information. Said Item may, however, be
considered correct unless amended by an amendment to this Form T-l.
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
l939, the trustee, State Street Bank and Trust Company, a Massachusetts trust
company, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Hartford, and State of Connecticut, on the 30th day of January, 1998.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Robert L. Reynolds
--------------------------
Name: Robert L. Reynolds
Title: Vice President
<PAGE>
EXHIBIT 5
CONSENT OF THE TRUSTEE
REQUIRED BY SECTION 321(b)
OF THE TRUST INDENTURE ACT OF 1939
The undersigned, as Trustee under an Indenture entered into between
EMCOR Group, Inc. and State Street Bank and Trust Company, Trustee, does hereby
consent that, pursuant to Section 321(b) of the Trust Indenture Act of 1939,
reports of examinations with respect to the undersigned by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST
COMPANY,
Trustee
By /s/ Robert L. Reynolds
--------------------------
Name: Robert L. Reynolds
Title: Vice President
Dated: January 30, 1998
<PAGE>
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business March 31, 1997,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<S> <C> <C>
ASSETS Thousands of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,665,142
Interest-bearing balances 8,193,292
Securities 10,238,113
Federal funds sold and securities purchased under agreements to resell
in domestic offices of the bank and of its Edge subsidiary 5,863,144
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,936,454
Allowance for loan and lease losses 70,307
Loans and leases, net of unearned income and allowance 4,866,147
Assets held in trading accounts 957,478
Premises and fixed assets 380,117
Other real estate owned 884
Investments in unconsolidated subsidiaries 26,835
Customers' liability to this bank on acceptances outstanding 45,548
Intangible assets 158,080
Other assets 1,066,957
-----------
TOTAL ASSETS 33,450,737
===========
LIABILITIES
Deposits:
In domestic offices 8,270,845
Noninterest-bearing 6,318,360
Interest-bearing 1,952,485
In foreign offices and Edge subsidiary 12,760,086
Noninterest-bearing 53,052
Interest-bearing 12,707,034
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and of its Edge subsidiary 8,216,641
Demand notes issued to the U.S. Treasury and Trading Liabilities 926,821
Other borrowed money 671,164
Subordinated notes and debentures 0
Bank's liability on acceptances executed and outstanding 46,137
Other liabilities 745,529
-----------
TOTAL LIABILITIES 31,637,223
===========
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common Stock 29,931
Surplus 360,717
Undivided profits and capital reserves/Net unrealized holding gains (losses) 1,426,881
Cumulative foreign currency translation adjustments (4,015)
TOTAL EQUITY CAPITAL 1,813,514
-----------
TOTAL LIABILITIES AND EQUITY CAPITAL 33,450,737
===========
</TABLE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Charles F. Kaye
