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As filed with the Securities and Exchange Commission on April 4, 1997
Registration No. 333- _____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------
CENTURY COMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
New Jersey 06-1158179
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
50 Locust Avenue
New Canaan, Connecticut 06840
(203) 972-2000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Bernard P. Gallagher
Century Communications Corp.
50 Locust Avenue
New Canaan, Connecticut 06840
(203) 972-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
<TABLE>
<S> <C> <C>
David Z. Rosensweig David F. Kroenlein Vincent Pagano, Jr.
Leavy Rosensweig & Hyman Whitman Breed Abbott & Morgan Simpson Thacher & Bartlett
11 East 44th Street 200 Park Avenue 425 Lexington Avenue
New York, New York 10017 New York, New York 10166 New York, New York 10017
(212) 983-0400 (212) 351-3000 (212) 455-2000
</TABLE>
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Approximate date of commencement of the 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
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PROPOSED PROPOSED
TITLE OF EACH CLASS AMOUNT MAXIMUM MAXIMUM
OF SECURITIES TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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Senior Debt Securities,
Senior Subordinated Debt
Securities and Subordinated
Debt Securities (collectively
the "Debt Securities")............ $500,000,000(2) 100% $500,000,000 $151,515.15
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Class A Common Stock, par
value $.01 per share.............. (3) -- -- --
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 of the Securities Act of 1933, as amended.
(2) If any Debt Securities are to be issued at an original issue discount, such
greater amount as shall result in an aggregate initial offering price of
not more than $500,000,000.
(3) Such presently indeterminate number of shares of Class A Common Stock as
may be issuable from time to time upon conversion of the Debt Securities
being registered hereunder.
------------------------------------
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Statement Pursuant to Rule 429(b)
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
which forms a part of this registration statement includes all the information
currently required in the prospectus relating to Debt Securities covered
by registration statement No. 33-50779 of the registrant that became effective
on July 14, 1994 and Shares of Class A Common Stock which may be issuable upon
conversion thereof.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 4, 1997
PROSPECTUS
Century Communications Corp.
Senior Debt Securities
Senior Subordinated Debt
Securities and Subordinated
Debt Securities
Century Communications Corp. (the "Company") from time to time may offer up
to $502,000,000 aggregate principal amount of debentures, notes and/or other
unsecured evidences of indebtedness consisting of senior debt securities
("Senior Debt Securities"), senior subordinated debt securities ("Senior
Subordinated Debt Securities") and subordinated debt securities ("Subordinated
Debt Securities") (collectively, the "Debt Securities"). The Debt
Securities may be issued as convertible Debt Securities which, unless
previously redeemed or otherwise purchased, will be convertible at any time
during the specified conversion period into shares of the Company's Class A
Common Stock, par value $.01 per share (the "Class A Common Stock"). The Debt
Securities may be offered as separate series in amounts, at prices and on terms
to be determined at the time of sale and to be set forth in supplements to
this Prospectus. The Company may sell Debt Securities to or through underwriters
or dealers and also may sell Debt Securities directly to other purchasers or
through agents. See "Plan of Distribution."
Certain terms of the Debt Securities in respect of which this Prospectus is
being delivered (the "Offered Debt Securities"), including, where applicable,
the specific designation (including whether senior, senior subordinated or
subordinated and whether convertible), aggregate principal amount,
denominations, maturity or the method of determination thereof, interest rate
(which may be fixed or variable) and time of payment of interest, initial
conversion rate and terms relating to the adjustment thereof that are in
addition to or different from those described herein, the period during which
any convertible Debt Securities may be converted, terms for redemption at the
option of the Company or the holder, terms for sinking or purchase fund
payments, the initial public offering price, any listing or proposed listing on
a securities exchange, the names of any underwriters or agents and the
compensation of such underwriters or agents and the other terms in connection
with the offering and sale of the Offered Debt Securities are set forth in the
accompanying Prospectus Supplement ("Prospectus Supplement").
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
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 APRIL __, 1997.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") two registration statements on Form S-3 (together with all
amendments and exhibits, referred to as the "Registration Statements") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Debt Securities. This Prospectus does not contain all of the information set
forth in the Registration Statements, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information pertaining to the Debt Securities, the Class A Common Stock and the
Company, reference is made to the Registration Statements.
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 and information statements and other
information with the Commission. Such reports, proxy and information statements
and other information can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices at 7 World Trade Center,
Suite 1300, New York, New York 10048, and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at 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 Class A Common Stock is listed on
The Nasdaq Stock Market and the Company therefore also files reports, proxy and
information statements and other information with the National Association of
Securities Dealers, Inc. ("NASD"). The above material can be inspected at the
Nasdaq Reports Section, 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference: the Annual
Report on Form 10-K for the fiscal year ended May 31, 1996 and Amendment No. 1
thereto filed on August 30, 1996, the Quarterly Report on Form 10-Q for the
fiscal quarter ended August 31, 1996, the Quarterly Report on Form 10-Q for the
fiscal quarter ended November 30, 1996 and Amendment No. 1 thereto filed on
January 15, 1997, and the Current Report on Form 8-K filed on June 14, 1996 and
Amendment Nos. 1 and 2 thereto filed on August 15, 1996 and August 16, 1996,
respectively.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Debt Securities shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the respective date of filing of
each such document. 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, or
is 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 will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference herein, other than certain exhibits to
such documents. Requests for such documents should be directed to Scott N.
Schneider, Chief Financial Officer, Senior Vice President and Treasurer, Century
Communications Corp., 50 Locust Avenue, New Canaan, Connecticut 06840. The
Company's telephone number is (203) 972-2000.
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RISK FACTORS
Before purchasing the Debt Securities, a prospective investor should
consider, among other things, the following factors.
NET LOSSES; STOCKHOLDERS' DEFICIENCY
The Company has reported net losses of $102,117,000, $82,625,000,
$78,469,000 and $43,065,000 for the fiscal years ended May 31, 1996 and 1995 and
the six-month periods ended November 30, 1996 and 1995, respectively. Operating
income (loss) was $26,248,000, $26,702,000, $(9,199,000) and $23,084,000 for the
respective periods, after taking into account non-cash charges (and the write
down of Australian assets of $10,000,000 and $40,000,000 for the year ended May
31, 1996 and the six months ended November 30, 1996, respectively) of
$226,456,000, $171,931,000, $165,632,000 and $94,900,000, respectively. Interest
expense was $172,215,000, $139,001,000, $97,527,000 and $90,333,000 for the
respective periods. The Company expects net losses to continue until such time
as the operations of its cable television systems and cellular telephone
systems can generate sufficient earnings to offset the charges, including
depreciation and amortization and interest expense, incurred in connection
with such operations and its investments in plants associated with rebuilds
and extensions of its cable television systems and expansion of the cellular
telephone system infrastructure.
Reflecting net losses in prior periods, the common stockholders'
deficiency as stated on the Company's consolidated balance sheet at November 30,
1996 was $521,124,000. The Company's assets, including its cable television
franchises and cellular telephone licenses, are recorded on its balance sheet at
historical cost. The Company believes that the current fair value of such assets
is significantly in excess of their historical cost. Accordingly, the Company
does not believe that the common stockholders' deficiency affects the current
fair value of the Company.
LEVERAGE; CAPITAL REQUIREMENTS
In recent years, the Company and its subsidiaries have incurred
substantial indebtedness in connection with the acquisition, construction and
start-up expenses of cellular telephone systems as well as the acquisition,
upgrade and extension of cable television systems. At November 30, 1996, the
Company and its subsidiaries had long-term debt (exclusive of current maturities
of $15,199,000) of $2,104,524,000, including indebtedness under four credit
agreements executed by subsidiaries of the Company and various banks (the
"Credit Agreements") and under a note agreement executed by a subsidiary of the
Company in December 1992 (the "Note Agreement"). At November 30, 1996,
Centennial Cellular Corp., the Company's 31.8% owned subsidiary ("Centennial
Cellular"), had an aggregate of $380,000,000 outstanding principal amount of
debt securities.
The cable television and cellular telephone businesses are capital
intensive. While cash generated from operations is expected to fund an
increasing portion of the working capital requirements, capital expenditures and
debt service obligations of the Company and its subsidiaries, the Company will
require additional funds from bank borrowings and other sources. In the past,
the Company has funded the principal obligations on its long-term debt by
refinancing the principal with expanded bank lines of credit. Although to date
the Company has been able to obtain financing on satisfactory terms, there can
be no assurance that this will continue to be the case in the future. The
Indentures for the Company's outstanding issues of publicly-held debt (the
"Existing Indentures") impose certain restrictions on the incurrence of
additional indebtedness. See "Restrictive Covenants; Consequences of Default"
below.
For the year ended May 31, 1996 and the six months ended November 30,
1996, earnings were less than fixed charges by $154,316,000 and $107,584,000,
respectively. See "Ratio of Earnings to Fixed Charges." Such amounts reflect
non-cash charges totaling $220,712,000 and $127,981,000, respectively,
consisting of depreciation and amortization and subsidiary preferred stock
dividends.
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RESTRICTIVE COVENANTS; CONSEQUENCES OF DEFAULT
The Credit Agreements, the Note Agreement and the Existing Indentures
contain various financial and operating covenants, including, among other
things, maintenance of certain financial ratios, restrictions on the ability of
certain subsidiaries of the Company to incur indebtedness or liens, to make
certain capital expenditures and to transfer funds to the Company and limits on
certain other corporate actions. The Existing Indentures also contain various
covenants, including, among other things, restrictions on the ability of the
Company to incur indebtedness and to make loans or capital contributions to, or
to act as a guarantor for, certain of its subsidiaries and affiliates, which
presently consist of those subsidiaries and affiliates engaged in the cellular
telephone and related businesses. The ability of the Company and its
subsidiaries to comply with such provisions may be affected by events beyond
their control.
In the event of a default under the agreements pursuant to which the
outstanding debt securities of the Company and its subsidiaries are issued, the
holders of such debt or the trustee acting on their behalf could elect to
declare all of such debt securities, together with accrued interest, to be due
and payable. Under certain of such agreements, the creditors would also have
other remedies available, including foreclosure on the capital stock of the
Company's subsidiaries which is pledged to secure such debt. In addition, in the
event of a default under the Existing Indentures, the Company would be
prohibited from making any payments on any Senior Subordinated Debt Securities
or Subordinated Debt Securities until all debt senior thereto was paid in full.
There can be no assurance that the assets of the Company would be sufficient to
repay all such senior debt and any Senior Subordinated Debt Securities and
Subordinated Debt Securities then outstanding.
The Company is currently in compliance with the financial and
operating covenants contained in the Credit Agreements, the Note Agreement and
the Existing Indentures and management believes it is not presently at risk of
noncompliance. However, there can be no assurance that this will continue to be
the case.
CELLULAR TELEPHONE INDUSTRY
The Company has a 31.8% common stock interest and a 73.6% voting
interest in Centennial Cellular and provides management services to Centennial
Cellular. As a result of the Company's controlling interest in the voting power
of Centennial Cellular, the operations of Centennial Cellular are consolidated
with those of the Company for financial reporting purposes. Centennial
Cellular is engaged in the ownership and operation of non-wireline telephone
systems primarily in four geographic areas in the United States and Puerto Rico.
See "THE COMPANY." Centennial Cellular is a highly leveraged company.
Centennial Cellular is solely responsible for its debt. Since August 1988,
Centennial Cellular has acquired licenses for 28 cellular telephone markets
which it owns and manages, some of which are considered to be in the early
development phase of operations. Centennial Cellular also owns minority
equity investment interests in certain other cellular telephone systems and
has recently determined to sell or otherwise dispose of such interests. On
March 13, 1995, Centennial Cellular successfully bid for one of two Metropolitan
Trading Areas (MTA) licenses to provide broadband personal communications
services ("PCS") in the Commonwealth of Puerto Rico and the U.S. Virgin
Islands. Centennial Cellular also plans to participate in a full range of
telecommunication services including wireless PCS, competitive local exchange
and alternative access. Centennial Cellular requires substantial capital to
operate, construct, expand and acquire cellular telephone systems and to build
out and operate its recently acquired Puerto Rico telecommunications business
and for debt service. Historically, Centennial Cellular has been dependent
upon borrowings, the issuance of its equity securities and operating cash flow
to provide funds for such purposes. Centennial Cellular is exploring various
sources of external financing, including, but not limited to, bank financing,
joint ventures, partnerships and public and private placement of its debt or
equity securities, and will be dependent on such external financing to meet
its operating, debt service, dividend and capital expenditure commitments.
Centennial Cellular does not anticipate that improved cash flow from operations
will be sufficient in the near term to fund its requirements.
Additionally, the licensing, ownership, construction, operation and
sale of controlling interests in cellular telephone systems are regulated by the
Federal Communications Commission ("FCC"). Certain aspects of cellular telephone
system ownership, construction, operation (including, but not limited to, rates
and the resale of cellular service) and sale may be subject to public
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utility or other state and municipal regulation in the states in which service
is provided. Changes in the regulation of cellular telephone system operators or
their activities (such as increased price regulation by state authorities or a
decision by the FCC to permit more than two licensees in each service area)
could have a material adverse effect on Centennial Cellular's operations.
CONTROL BY CERTAIN STOCKHOLDERS
The ownership interest in the Company of Leonard Tow and certain
trusts for the benefit of members of his family (the "Tow Trusts"), constituting
approximately 87.76% of the combined voting power of both the Class A Common
Stock and the Class B Common Stock of the Company, presently gives them the
power to elect all but one member of the Board of Directors of the Company and
to control the vote on all other matters submitted to a vote of the Company's
stockholders. See "DESCRIPTION OF CAPITAL STOCK--Common Stock--Voting Rights."
Under certain of the Credit Agreements, an event of default occurs if
Leonard Tow and/or members of his immediate family or the Tow Trusts cease to
own, in the aggregate, stock of the Company having at least a majority of the
combined voting power of both classes of Common Stock of the Company.
FOREIGN CURRENCY EXCHANGE RATE RISKS; HEDGING
The Company's monetary assets and liabilities are subject to foreign
currency exchange risk as certain equipment purchases and payments for certain
operating expenses, such as programming expenses, are denominated in currencies
other than their own functional currency. In addition, certain of the Company's
Australian subsidiaries have notes payable and notes receivable which are
denominated in a currency other than their own functional currency or
intercompany loans payable linked to the U.S. dollar.
In general, the Company does not execute hedge transactions to reduce
its exposure to foreign currency exchange rate risks. Accordingly, the Company
may experience economic loss and a negative impact on earnings with respect to
its holdings solely as a result of foreign currency exchange rate fluctuations,
which include foreign currency devaluations against the dollar. The Company may
also experience economic loss and a negative impact on earnings related to these
monetary assets and liabilities. In general, exchange rate risk to the Company's
commitments for equipment purchases and operating expenses is generally limited
due to the insignificance of the related monetary asset and liability balances;
however, exchange rate risk to the Company of these notes payable and notes
receivable and debt linked to the U. S. dollar have and will continue to impact
its reported earnings.
Australia, where the Company is presently involved in the pay
television industry, generally does not restrict the removal or conversion of
local or foreign currency; however, there is no assurance this position will
continue.
REGULATION
On February 8, 1996, "The Telecommunications Act of 1996" (the "1996
Act") was enacted into law. The new law alters federal, state and local laws and
regulations regarding telecommunications providers and services, including the
cable television industry. The 1996 Act deregulates (except for basic service)
cable service rates over a three year period. Implementing regulations of the
1996 Act are currently being written. The effect that the 1996 Act will have on
the Company's cable television business cannot be determined at this time.
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THE COMPANY
The Company was incorporated in New Jersey on December 5, 1985 as the
holding company for a corporation of the same name incorporated in Texas on June
12, 1973 ("Century-Texas"). The Company is engaged primarily in the ownership
and operation of cable television systems and wireless telephone systems.
At November 30, 1996, the Company owned and operated 70 cable
television systems in 25 states and Puerto Rico. At that date, the Company's
cable systems passed approximately 2,060,000 homes and served a total of
approximately 1,250,000 primary basic subscribers. Certain of the Company's
cable systems are owned 50% by the Company and 50% by unaffiliated entities. At
November 30, 1996, these systems passed approximately 541,000 homes and served
approximately 271,000 primary basic subscribers.
The Company has a 31.8% common stock interest and a 73.6% voting
interest in Centennial Cellular and provides management services to Centennial
Cellular. Centennial Cellular is engaged in the ownership and operation of
wireless telephone systems, primarily in four geographic areas in the United
States and Puerto Rico. Since August 1988, Centennial Cellular has acquired
licenses for 28 cellular telephone markets which it owns and manages. In
addition, on March 13, 1995, Centennial Cellular successfully bid for one of
two MTA licenses to provide PCS in the Commonwealth of Puerto Rico and the U.S.
Virgin Islands. Centennial Cellular also plans to participate in a full range of
telecommunications services including wireless PCS, competitive local exchange
and alternative access.
The Company has interests in businesses in the developing pay
television industry in Australia. The interests include investments in entities
which have the following: (i) programming arrangements and ownership of a
satellite subscription broadcast license which permits distribution of
programming via direct-to-home (DTH) satellite television broadcasting
throughout Australia; (ii) ownership of wireless cable distribution licenses
(MDS) in areas covering approximately 755,000 households; and (iii) a
partnership in up to 25% of net cash flow of Australis Media Limited
("Australis"), another Australian pay television operator.
The Company has determined to pursue a strategy to sell its
Australian investments and is currently in discussion with investment advisors
with respect thereto. The Company has not yet developed an estimate of the net
proceeds to be received on disposition or the expected period required for
completion of the disposition. As a result, the operating results for the
Australian operations are reported as a component of continuing operations. Once
the Company has developed its formal plan for disposition, including its
estimate of the net proceeds upon disposition and the period expected to be
required for completion of the disposition, the Company anticipates accounting
for its Australian operations as discontinued operations.
The Company expects to continue to consider acquisitions of or
investments in cable television systems and other communications-related
properties. Centennial Cellular expects to continue to consider acquisitions of
or investments in cellular telephone systems and other communications-related
products and services.
The Company's principal executive offices are located at 50 Locust
Avenue, New Canaan, Connecticut 06840 and its telephone number is (203)
972-2000.
RATIO OF EARNINGS TO FIXED CHARGES
For the purpose of calculating the ratio of earnings to fixed
charges, earnings consist of the amount of fixed charges plus earnings before
income taxes and extraordinary items. Fixed charges consist of interest,
including amortization of debt issue costs and capitalized interest, subsidiary
preferred stock dividends, and the portion of rent deemed representative of the
interest factor. For the years ended May 31, 1992, 1993, 1994, 1995 and 1996 and
the six months ended November 30, 1996, earnings as defined were less than fixed
charges by approximately $83,015,000, $68,553,000, $66,088,000, $114,448,000,
$154,316,000 and $107,584,000, respectively. The increased deficiency of
earnings to fixed charges reflects higher levels of interest expense as a
result of increased borrowings incurred to finance acquisitions, capital
expenditures, working capital requirements, debt service and increases in
non-cash depreciation and amortization expense related to acquisitions and
capital expenditures. See "Risk Factors--Leverage; Capital Requirements."
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement relating
to an offering of Debt Securities (such Debt Securities, "Offered Debt
Securities"), the net proceeds from the sale of the Debt Securities will be used
for general corporate purposes, including the reduction of existing indebtedness
under one or more of the Credit Agreements as well as the financing of capital
expenditures and acquisitions. The Company has no current specific plans for the
net proceeds of an offering of Offered Debt Securities. Any specific allocation
of the net proceeds of an offering of Offered Debt Securities to a specific
purpose will be determined at the time of such offering and will be described in
the related Prospectus Supplement. Pending any specific application that may be
described in the Prospectus Supplement, the net proceeds will be added to
working capital and invested in short-term interest bearing obligations. Such
investments will be subject to fluctuating interest rates which may be lower
than the rates applicable to the Debt Securities.
The Company may borrow additional funds from time to time from public
and private sources on both a long-term and short-term basis to fund its future
capital and working capital requirements in excess of internally generated
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funds. Certain of such borrowings may rank senior in right of payment to the
indebtedness represented by Debt Securities that are Senior Subordinated Debt
Securities or Subordinated Debt Securities. See "DESCRIPTION OF DEBT
SECURITIES--Subordination."
PRICE RANGE OF CLASS A COMMON STOCK
The Class A Common Stock has traded on the Nasdaq System ("NASDAQ")
under the symbol CTYA since January 5, 1995. Previously, it had traded on the
American Stock Exchange. There is no established public market for the Class B
Common Stock. The table set forth below lists the high asked and the low bid
prices for the Class A Common Stock reported on NASDAQ for the period from
January 5, 1995 through January 16, 1997.
HIGH LOW
---- ---
1995
First Quarter................................. $10.13 $7.25
Second Quarter................................ 10.13 7.63
Third Quarter................................. 10.50 8.63
Fourth Quarter................................ 10.38 7.75
1996
First Quarter................................. 10.13 7.50
Second Quarter................................ 10.13 8.25
Third Quarter................................. 8.88 6.13
Fourth Quarter................................ 7.63 5.13
1997
First Quarter (through March 31).............. 4.88 3.63
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Offered Debt Securities offered by any Prospectus
Supplement and any variations from such general terms and provisions applicable
to the Offered Debt Securities so offered will be described in the Prospectus
Supplement relating to such Offered Debt Securities.
The Debt Securities will be general unsecured obligations of
the Company. The Senior Debt Securities will be senior to all subordinated
indebtedness of the Company, including any outstanding Senior Subordinated Debt
Securities and Subordinated Debt Securities, and pari passu with other
unsecured, unsubordinated indebtedness of the Company. The Senior Subordinated
Debt Securities will be
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subordinate in right of payment to any Senior Debt Securities, including
$200,000,000 aggregate principal amount of 9 3/4% Senior Notes Due 2002 issued
by the Company in February 1992 (the "9 3/4% Notes"), $150,000,000 aggregate
principal amount of 9 1/2% Senior Notes Due 2000 issued by the Company in August
1992 (the "1992 Notes"), $250,000,000 aggregate principal amount of 9 1/2%
Senior Notes Due 2005 issued by the Company in March 1995 (the "1995 Notes"; the
1992 Notes and the 1995 Notes are hereinafter collectively referred to as the "9
1/2% Notes"), $250,000,000 aggregate principal amount of 8 7/8% Senior Notes Due
2007 issued by the Company in January 1997 (the "8 7/8% Notes"), and
$444,000,000 aggregate principal amount of Senior Discount Notes Due 2003
issued by the Company in March 1993 (the "Discount Notes"), and to certain
other debt obligations of the Company that may be outstanding from time to time,
pari passu with $204,000,000 aggregate principal amount of 11 7/8% Senior
Subordinated Debentures Due 2003 issued by the Company in October 1991
(the "11 7/8% Debentures") and certain other senior subordinated indebtedness
of the Company that may be outstanding from time to time and senior to certain
subordinated indebtedness of the Company that may be outstanding from time to
time, including any Subordinated Debt Securities. The Subordinated Debt
Securities will be subordinate in right of payment to any Senior Debt
Securities, including the 8 7/8% Notes, the 9 3/4% Notes, the 9 1/2% Notes
and the Discount Notes, and Senior Subordinated Debt Securities, including the
11 7/8% Debentures, and to certain other debt obligations of the Company that
may be outstanding from time to time and pari passu with certain other
subordinated indebtedness of the Company that may be outstanding from time to
time.
On March 27, 1997, the Company gave notice of redemption of the
entire principal amount outstanding of the 11 7/8% Debentures. The 11 7/8%
Debentures will be redeemed on April 15, 1997 at a redemption price of 105% of
the principal amount thereof.
The principal operations of the Company are and will be conducted
through its subsidiaries. The Company's ability to service its indebtedness,
including the Debt Securities, is dependent primarily upon the receipt of funds
from its subsidiaries. The subsidiaries are separate legal entities and have no
obligation to pay any amounts due pursuant to the Debt Securities. The
provisions of the Credit Agreements limit the Company's ability to receive funds
from certain of its subsidiaries in the form of loans, advances, dividends,
management fees or otherwise to the amounts necessary to pay normal operating
expenses and Federal and state income and franchise taxes. Except to the extent
that the Company may itself be a creditor with recognized claims against its
subsidiaries, claims of creditors of such subsidiaries, including trade
creditors and the lending banks under the Credit Agreements, will have
priority with respect to the assets and earnings of such subsidiaries over the
claims of creditors of the Company, including holders of the Debt Securities,
even though such subsidiary obligations do not constitute Senior
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Indebtedness. The amount of such subsidiary indebtedness as of November 30, 1996
(including the debt securities of Centennial Cellular which aggregated
$380,000,000 in outstanding principal amount at November 30, 1996) was
$1,061,799,000.
Senior Debt Securities will be issued under a senior indenture to
be executed by the Company and the trustee thereunder (the "Senior Indenture");
Senior Subordinated Debt Securities will be issued under a senior subordinated
indenture to be executed by the Company and the trustee thereunder (the "Senior
Subordinated Indenture"); and Subordinated Debt Securities will be issued
under a subordinated indenture to be executed by the Company and the trustee
thereunder (the "Subordinated Indenture"). Each of the Senior Indenture, the
Senior Subordinated Indenture and the Subordinated Indenture will contain
similar covenants and default provisions to those contained in the Existing
Indentures. See "RISK FACTORS -- Restrictive Covenants; Consequences of
Default." Forms of each of the Senior Indenture, the Senior Subordinated
Indenture and the Subordinated Indenture have been filed as exhibits to the
Registration Statement of which this Prospectus is a part. In this Prospectus,
each of the Senior Indenture, the Senior Subordinated Indenture and the
Subordinated Indenture are sometimes collectively referred to as the Indentures
and each of the trustees that will serve thereunder are sometimes collectively
referred to as the Trustees and individually as a Trustee.
The terms of the Debt Securities will include those to be stated in
the Indentures and those made part of such Indentures by reference to the Trust
Indenture Act of 1939, as in effect on the date thereof (the "Trust Indenture
Act"). The Debt Securities are subject to all such terms, and prospective
purchasers of Debt Securities are referred to the Indentures and the Trust
Indenture Act for a statement thereof. The statements under this caption
relating to the general terms and provisions of the Debt Securities and the
Indentures are summaries of the material terms thereof. Such summaries are
qualified in their entirety by express reference to the Indentures which will be
filed as exhibits to the Registration Statement of which this Prospectus is a
part and must be read in conjunction with the description of the particular
terms of the Offered Debt Securities that will be set forth in the Prospectus
Supplement relating thereto.
GENERAL
The Indentures will not limit the aggregate principal amount of
debentures, notes or other evidences of indebtedness which may be issued
thereunder and will provide that Debt Securities may be issued thereunder in one
or more series, in such form or forms, with such terms and up to the aggregate
principal amount authorized from time to time by the Company.
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Reference is made to the Prospectus Supplement for the following
terms of the Offered Debt Securities: (1) the designation (including whether
they are Senior Debt Securities, Senior Subordinated Debt Securities or
Subordinated Debt Securities and whether such Debt Securities are convertible),
aggregate principal amount and authorized denominations of the Offered Debt
Securities; (2) the percentage of their principal amount at which such Offered
Debt Securities will be issued; (3) the date or dates on which the Offered Debt
Securities will mature or the method of determination thereof; (4) the rate or
rates (which may be fixed or variable) at which the Offered Debt Securities will
bear interest, if any, or the method by which such rate or rates shall be
determined, any reset features of the rates and the date or dates from which
such interest will accrue or the method by which such date or dates shall be
determined; (5) the dates on which any such interest will be payable and the
Regular Record Dates for such Interest Payment Dates; (6) any mandatory or
optional sinking fund or purchase fund or analogous provisions; (7) if
applicable, the date after which and the price or prices at which the Offered
Debt Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed at the option of the Company or of the Holder thereof
and the other detailed terms and provisions of such optional or mandatory
redemption; (8) if applicable, the terms and conditions upon which the Offered
Debt Securities may be convertible into Class A Common Stock, including the
initial conversion rate, the conversion period and any other provision in
addition to or in lieu of those described herein; (9) whether such Offered Debt
Securities shall be subject to defeasance and, if so, the terms thereof; (10)
any Events of Default provided with respect to the Offered Debt Securities that
are in addition to or different from those described herein; and (11) any other
terms of the Offered Debt Securities.
First Trust of California, National Association, successor trustee to
Bank of America National Trust and Savings Association, is the trustee with
respect to the 9 3/4% Notes, the 9 1/2% Notes, the 8 7/8% Notes and the Discount
Notes which were issued under a Senior Indenture dated as of February 15, 1992
between the Company and First Trust of California, National Association, as
successor trustee, and will rank pari passu with any other Senior Debt
Securities. Bank of Montreal Trust Company is the trustee with respect to
the 11 7/8% Debentures, which were issued under a Senior Subordinated Indenture
dated as of October 15, 1991 between the Company and Bank of Montreal Trust
Company, as trustee, and will rank pari passu with any other Senior Subordinated
Debt Securities. The Existing Indentures governing the 11 7/8% Debentures, the
9 3/4% Notes, the 9 1/2% Notes, the 8 7/8% Notes and the Discount Notes provide
that the holders of the 11 7/8% Debentures, the 9 3/4% Notes, the 9 1/2% Notes,
the 8 7/8% Notes and the Discount Notes, respectively, have the right to
require the Company to purchase the 11 7/8% Debentures, the 9 3/4% Notes, the
9 1/2% Notes, the 8 7/8% Notes and the Discount Notes, as the case may be,
following a transaction or transactions which reduce below 300 the number of
record holders of the Class A Common Stock and which result in certain
reductions in ratings of the 11 7/8% Debentures, the 9 3/4% Notes, the 9 1/2%
Notes, the 8 7/8% Notes and the Discount Notes, as the case may be. Unless
otherwise indicated in the Prospectus Supplement relating thereto, the
holders of Offered Debt Securities will not have a similar right or be
entitled to other types of event risk protection.
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Unless otherwise indicated in the Prospectus Supplement relating
thereto, the principal of (and premium, if any) and interest on the Offered Debt
Securities will be payable, and the Offered Debt Securities will be exchangeable
and transfers thereof will be registrable, at the Corporate Trust Office of the
Trustee, provided that at the option of the Company, payment of any interest may
be made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register.
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Offered Debt Securities will be issued only in fully registered
form, without coupons, in denominations of $1,000 or any integral multiple
thereof. No service charge will be made for any registration of transfer or
exchange of the Offered Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount from the
principal amount thereof. Special federal income tax, accounting and other
considerations applicable to any such Original Issue Discount Securities will be
described in the Prospectus Supplement relating thereto.
SUBORDINATION
The payment of the principal of (and premium, if any) and interest on
any Subordinated Debt Securities will be expressly subordinated, to the extent
and in the manner as will be set forth in the Subordinated Indenture, in right
of payment to the prior payment in full of all present and future Senior
Indebtedness (including the 9 3/4% Notes, the 9 1/2% Notes, the 8 7/8% Notes,
the Discount Notes and any other Senior Debt Securities and the 11 7/8%
Debentures and any other Senior Subordinated Debt Securities then outstanding)
of the Company. Senior Indebtedness will be defined in the Subordinated
Indenture as: (a) the Bank Obligations and (b) the principal of (and premium, if
any) and interest on (i) all other indebtedness for money borrowed by the
Company, whether outstanding on the date of the Indenture or thereafter created
or incurred; (ii) all other indebtedness for money borrowed by another Person in
which the Company has an equity interest or has the right to purchase an equity
interest, which is guaranteed in whole or in part directly or indirectly by the
Company (whether such guarantee is outstanding on the date of the Subordinated
Indenture or thereafter created or incurred); and (iii) all indebtedness
constituting purchase money indebtedness for the payment of which the Company
is directly or contingently liable,
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whether outstanding on the date of the Subordinated Indenture or thereafter
created or incurred; (c) any obligation of the Company to purchase or guarantee
indebtedness of, to supply funds to or invest in another Person in which the
Company has an equity interest or has the right to purchase an equity interest
(whether such obligation is outstanding on the date of the Subordinated
Indenture or is thereafter created or incurred); (d) any obligation of the
Company to any Person in respect of surety or similar bonds issued by such
Person in connection with entering into, renewing, extending or maintaining any
cable television franchise granted by a governmental authority or any
construction in respect of any cable television system by the Company or any
other Person in which the Company has an equity interest or has the right to
purchase an equity interest; (e) any obligation of the Company to compensate,
reimburse or indemnify an issuer with respect to any letter of credit issued at
the request of or for the account of the Company; (f) any obligation of the
Company under any Interest Swap Obligations or Currency Agreements (other than
any Interest Swap Obligations or Currency Agreements the payments with respect
to which correspond to payments on, or one of the events permitting the early
termination of which is expressly connected to, any indebtedness of the Company
which is expressed to be subordinate to other indebtedness of the Company or
to rank on a parity with the Subordinated Debt Securities); and (g) all
renewals, extensions or refundings of any such obligations, indebtedness and
guarantees; provided, however, that if, by the terms of the instrument creating
or evidencing any obligation, indebtedness or guarantee (referred to in clauses
(a) through (g) above), it is expressly provided that such obligation,
indebtedness or guarantee is subordinate to all indebtedness of the Company
other than the Subordinated Debt Securities or indebtedness ranking pari passu
with the Subordinated Debt Securities or is not superior in right of payment
to the Subordinated Debt Securities, such obligation, indebtedness or guarantee
shall not be included as Senior Indebtedness but shall rank pari passu with
the Subordinated Debt Securities.
The payment of the principal of (and premium, if any) and interest on
any Senior Subordinated Debt Securities will be expressly subordinated, to the
extent and in the manner as will be set forth in the Senior Subordinated
Indenture, in right of payment to the prior payment in full of all present and
future Senior Indebtedness (including the 8 7/8% Notes, the 9 3/4% Notes, the 9
1/2% Notes, the Discount Notes and any other Senior Debt Securities then
outstanding) of the Company. Senior Indebtedness will be defined in the Senior
Subordinated Indenture in the same manner as in the Subordinated Indenture;
provided, however, that if, by the terms of the instrument creating or
evidencing any obligation, indebtedness or guarantee (referred to in clauses (a)
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through (g) of the preceding paragraph), it will be expressly provided that such
obligation, indebtedness or guarantee will be subordinate to all other
indebtedness of the Company or will not be superior in right of payment to any
Senior Subordinated Debt Securities, such obligation, indebtedness or guarantee
(including any Subordinated Debt Securities) shall not be included as Senior
Indebtedness; and, provided, further, that Senior Indebtedness as it will be
defined in the Senior Subordinated Indenture will not include (i) the 11 7/8%
Debentures then outstanding, if any, with which any Senior Subordinated Debt
Securities will rank pari passu and (ii) any other obligation, indebtedness or
guarantee that is created or evidenced by an instrument the terms of which
expressly provide that such obligation, indebtedness or guarantee ranks pari
passu with the Senior Subordinated Debt Securities.
The Indentures will not restrict the amount of additional Senior
Indebtedness that may be incurred by the Company. The aggregate principal amount
of Senior Indebtedness outstanding as of a recent date will be set forth in the
accompanying Prospectus Supplement.
Upon any payment or distribution of assets of the Company to
creditors upon any dissolution, winding up, total or partial liquidation or
reorganization, whether voluntary or involuntary, or in bankruptcy, insolvency
or receivership or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or otherwise, all
principal of, premium, if any, and interest due on all Senior Indebtedness
(including any Outstanding Senior Debt Securities) must be paid in full before
the holders of the Senior Subordinated Debt Securities or the Subordinated Debt
Securities are entitled to receive or retain any payment thereon. Subject to the
payment in full of all Senior Indebtedness, the holders of the Senior
Subordinated Debt Securities or the Subordinated Debt Securities will be
subrogated to the rights of the holders of Senior Indebtedness (as respectively
defined in the Senior Subordinated Indenture and the Subordinated Indenture) to
receive payments or distributions of assets of the Company applicable to Senior
Indebtedness until the Senior Subordinated Debt Securities or Subordinated Debt
Securities are paid in full.
Upon any default by the Company in the payment of all or any portion
of the principal of (or premium, if any) or interest on any Senior Indebtedness
(as will be defined in the Senior Subordinated Indenture or Subordinated
Indenture, as applicable) and provided the Trustee has received written notice
thereof, when the same becomes due, no payment may be made on or in respect
of the Senior Subordinated Debt Securities or the Subordinated Debt Securities
until such default has
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been cured or waived or the benefits of this provision have been waived by or on
behalf of the holders of such Senior Indebtedness.
CONVERSION RIGHTS
The Prospectus Supplement will provide whether the Offered Debt
Securities will be convertible and, if so, the initial conversion price or
conversion rate at which such convertible Debt Securities will be convertible
into Class A Common Stock. The holder of any convertible Debt Security will have
the right exercisable at any time during the time period specified in the
Prospectus Supplement, unless previously redeemed by the Company, to convert
such Debt Security at the principal amount thereof (or, if such Debt Security is
an Original Issue Discount Security, such portion of the principal amount
thereof as is specified in the terms of such Debt Security) into shares of Class
A Common Stock at the conversion price or conversion rate set forth in the
Prospectus Supplement, subject to adjustment as described below. The holder of a
convertible Debt Security may convert a portion thereof which is $1,000 or any
integral multiple of $1,000. In the case of Debt Securities called for
redemption, conversion rights will expire at the close of business on the date
fixed for the redemption as may be specified in the Prospectus Supplement,
except that in the case of redemption at the option of the holder, if
applicable, such right will terminate upon receipt of written notice of the
exercise of such option.
In certain events, the conversion rate will be subject to adjustment
as will be set forth in the Indentures. Such events will include the issuance
of shares of any class of capital stock of the Company as a dividend on the
Class A Common Stock into which the Debt Securities of such series are
convertible; subdivisions, combinations and reclassifications of the Class A
Common Stock into which Debt Securities of such series are convertible; the
issuance to all holders of Class A Common Stock into which Debt Securities of
such series are convertible of rights or warrants entitling the holders (for a
period not exceeding 45 days) to subscribe for or purchase shares of Class A
Common Stock at a price per share less than the current market price per share
of Class A Common Stock (as defined in the Indentures); and the distribution to
all holders of Class A Common Stock of evidences of indebtedness of the Company
or of assets (excluding cash dividends paid from retained earnings and dividends
payable in Class A Common Stock for which adjustment is made as referred to
above) or subscription rights or warrants (other than those referred to above).
No adjustment of the conversion price or conversion rate will be required unless
an adjustment would require a cumulative increase or decrease of at least 1% in
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such price or rate. Fractional shares of Class A Common Stock will not be issued
upon conversion, but, in lieu thereof, the Company will pay a cash adjustment.
Convertible Debt Securities surrendered for conversion between the record date
for an interest payment, if any, and the interest payment date (except
convertible Debt Securities called for redemption on a redemption date during
such period) must be accompanied by payment of an amount equal to the interest
thereon which the registered holder is to receive.
DEFAULT, NOTICE AND WAIVER
The following will be Events of Default under the Indentures with
respect to Debt Securities of any series issued thereunder: (i) default in the
payment of interest on any Debt Security of that series when due continued for
30 days (whether or not such payment is prohibited by the subordination
provisions of the Indenture); (ii) default in the payment of the principal of
(or premium, if any, on) any Debt Security of that series at its Maturity
(whether or not payment is prohibited by the subordination provisions of the
Indenture); (iii) default in the deposit of any sinking fund payment or
analogous obligation, when and as due by the terms of any Debt Security of that
series (whether or not payment is prohibited by the subordination provisions of
the Indenture); (iv) default in the performance, or breach, of any other
covenant or warranty of the Company in the Indenture or any Debt Security of
that series (other than a covenant included in the Indenture solely for the
benefit of Debt Securities other than that series), continued for 90 days after
written notice from the Trustee or the holders of 25% or more in principal
amount of the Debt Securities of such series outstanding; (v) certain events of
bankruptcy, insolvency or reorganization; and (vi) any other event of default
provided with respect to Debt Securities of that series. If an Event of Default
provided with respect to Debt Securities of any series at the time outstanding
shall occur and be continuing, the Trustee or the holders of not less than 25%
in principal amount of outstanding Debt Securities of that series may declare
the unpaid principal balance to be immediately due and payable. However, any
time after a declaration of acceleration with respect to Debt Securities of any
series has been made, but before judgment or decree based on such acceleration
has been obtained, the Holders of a majority in principal amount of Outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. For information as to waiver of defaults, see
"Modification and Waiver."
Reference is made to the Prospectus Supplement relating to any series
of Offered Debt Securities which are
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Original Issue Discount Securities for the particular provision relating to
acceleration of the Maturity of a portion of the principal amount of such
Original Issue Discount Securities upon the occurrence of an Event of Default
and the continuation thereof.
The Company will be required to file annually with each Trustee an
Officers' Certificate stating whether or not the Company is in default in the
performance and observance of any of the terms, provisions and conditions of the
respective Indenture and, if so, specifying the nature and status of the
default.
Each Indenture will provide that the Trustee, within 90 days after
the occurrence of a default, will give to holders of Debt Securities of any
series notice of all defaults with respect to such series known to it, unless
such default shall have been cured or waived; but, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
any Debt Security of such series or in the payment of any sinking fund or
analogous obligation installment with respect to Debt Securities of such series,
the Trustee will be protected in withholding such notice if the board of
directors or such committee of directors as designated in such Indenture or
Responsible Officer of the Trustee in good faith determines that the withholding
of such notice is in the interest of such holders.
Each Indenture will contain a provision entitling the Trustee to be
indemnified by holders of Debt Securities before proceeding to exercise any
right or power under such Indenture at the request of any such holders. Each
Indenture will provide that the holders of a majority in principal amount of the
outstanding Debt Securities of any series may, subject to certain exceptions,
direct 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 with respect to Debt Securities of such series. The right of a holder to
institute a proceeding with respect to each Indenture will be subject to certain
conditions precedent including notice and indemnity to the Trustee, but the
holder has an absolute right to receipt of principal and interest when due and
to institute suit for the enforcement thereof.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise indicated in the Prospectus Supplement relating to
Offered Debt Securities, the Company, without the consent of any Holder of
Outstanding Debt Securities, will be permitted to consolidate with or merge into
any other Person, or convey, transfer or lease its assets
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substantially as an entirety to, any Person, provided that the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer or lease the assets of the Company
substantially as an entirety is organized under the laws of any United States
jurisdiction and assumes the Company's obligations on the Debt Securities and
under the Indenture, that after giving effect to the transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing, and that certain
other conditions are met.
MODIFICATION AND WAIVER
Modification and amendments of the Indentures will be permitted to be
made by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Debt Securities of each series
affected thereby; provided, however, that no such modification or amendment
will, without the consent of the Holder of each Outstanding Debt Security
affected thereby: (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security; (b) reduce the
principal amount of, or any premium or interest on, any Debt Security;
(c) reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration of the Maturity thereof; (d) adversely affect any
right of repayment at the option of the Holder of any Security, or reduce
the amount of, or postpone the date fixed for, the payment of any sinking fund
or analogous obligation; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security; or
(f) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the consent of the Holders of which is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults.
Without the consent of any Holder of Outstanding Debt Securities, the
Company will be permitted to amend or supplement the Indentures and each series
of Debt Securities to cure any ambiguity or inconsistency or to provide for Debt
Securities in bearer form in addition to or in place of registered Debt
Securities or to make any other provisions that do not adversely affect the
rights of any Holder of Outstanding Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series will be permitted, on behalf of the Holders of all
Debt Securities of that series, to waive any past default under the Indenture
with respect to that series, except a default in the payment of the principal of
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(or premium, if any) or interest on any Debt Security of that series or in
respect of a provision which under such Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Debt Security of that
series affected.
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE
Each Indenture will be discharged upon payment of the principal of
(and premium, if any) and interest, if any, on all the Debt Securities and all
other sums due thereunder. In addition, the Indentures will provide that if, at
any time after the date thereof, the Company, if so permitted with respect to
Debt Securities of a particular series, shall deposit with the Trustee, in trust
for the benefit of the holders thereof, (i) funds sufficient to pay, or (ii)
U.S. Government Obligations as will, or will together with the income thereon
without consideration of any reinvestment thereof, be sufficient to pay all sums
due for the principal of (and premium, if any) and interest, if any, on the Debt
Securities of such series, as they shall become due from time to time, and
certain other conditions are met, the Trustee shall cancel and satisfy such
Indenture with respect to such series to the extent provided therein. The
Prospectus Supplement describing the Debt Securities of such series will more
fully describe the provisions, if any, relating to such cancellation and
satisfaction of the Indenture with respect to such series.
TRUSTEES
The Trustees may perform certain services for and transact other
banking business with the Company from time to time in the ordinary course of
business.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized Capital Stock consists of 400,000,000 shares
of Class A Common Stock, 300,000,000 shares of Class B Common Stock, par value
$.01 per share (the "Class B Common Stock" and, together with the Class A Common
Stock, the "Common Stock"), and 100,000,000 shares of preferred stock, par value
$.01 per share (the "Preferred Stock"). As of February 28, 1997, 31,010,353
shares of Class A Common Stock were issued and outstanding (excluding treasury
shares) and 45,126,115 shares of Class B Common Stock were issued and
outstanding. At such date, 42,297,059 shares of Class B Common Stock were owned
by Leonard Tow, Chairman of the Board and Chief Executive Officer of the
Company, and the Tow Trusts. No shares of Preferred Stock are outstanding and
there is no agreement or understanding that would require the issuance of any
series of such stock.
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COMMON STOCK
Dividends
The Company has never paid a cash dividend on its common stock. The
Company is currently restricted from paying cash dividends by certain of its
debt instruments. Its ability to do so is further limited by provisions of
credit agreements entered into by certain of its subsidiaries that limit the
amount of cash that may be upstreamed to the Company.
If all cumulative dividends shall have been paid as declared or set
apart for payment upon shares of Preferred Stock then outstanding, if any,
holders of shares of Class A Common Stock and Class B Common Stock are entitled
to receive such dividends as may be declared by the Company's Board of Directors
out of funds legally available for such purpose. No dividend may be declared or
paid in cash or property on any share of Class B Common Stock, however, unless
simultaneously the same dividend is paid on each share of Class A Common Stock.
Dividends can be declared and paid on shares of Class A Common Stock without
being declared and paid on the shares of Class B Common Stock. In the case of
any stock dividend, holders of Class A Common Stock are entitled to receive the
same percentage dividend (payable in shares of Class A Common Stock) as the
holders of Class B Common Stock receive (payable in shares of Class B Common
Stock).
Voting Rights
Holders of shares of Class A Common Stock and Class B Common Stock
vote as a single class on all matters submitted to a vote of the stockholders,
with each share of Class A Common Stock entitled to one vote and each share of
Class B Common Stock entitled to ten votes except (i) for the election of
directors and (ii) as otherwise required by law. Under New Jersey law, the
affirmative vote of the holders of a majority of the outstanding shares of Class
A Common Stock is required to approve, among other matters, an amendment of the
certificate of incorporation if the rights or preferences of such holders would
be subordinated or otherwise adversely affected thereby. In the election of
directors, the holders of Class A Common Stock, voting as a separate class, are
entitled to elect one director. The holders of Class A Common Stock and Class B
Common Stock, voting as a single class with each share of Class A Common Stock
entitled to one vote and each share of Class B Common Stock entitled to ten
votes, are entitled to elect the remaining directors. Holders of Class A Common
Stock and Class B Common Stock are not entitled to cumulative voting in the
election of directors. The ownership interest in the Company of Leonard Tow and
the Tow Trusts, constituting approximately 87.76% of the combined voting power
of both classes of Common Stock, gives them the power to elect all but the
one Class A director as described above and to control the vote on all other
matters submitted to a vote of the Company's stockholders.
Liquidation Rights
Upon liquidation, dissolution or winding up of the Company, the
holders of the Class A Common Stock are entitled to share ratably with the
holders of Class B Common Stock in all assets available for distribution after
payment in full of creditors and after the preferential rights of holders of
shares of Preferred Stock then outstanding, if any, have been satisfied.
Other Provisions
Each share of Class B Common Stock is convertible at the option of
its holder into one share of Class A Common Stock and converts automatically
into one share of Class A Common Stock upon sale or other transfer prior to
December 31, 2010 to a person other than an associate. The holders of Class A
Common Stock and Class B Common Stock are not entitled to preemptive or
subscription rights. Neither the Class A Common Stock nor the Class B Common
Stock may be subdivided, consolidated, reclassified, or otherwise changed unless
concurrently the
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other class of shares is subdivided, consolidated, reclassified, or otherwise
changed in the same proportion and in the same manner.
PREFERRED STOCK
The 100,000,000 shares of authorized and unissued Preferred Stock may
be issued with such designations, voting powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
and restrictions of such rights, as the Company's Board of Directors may
authorize, including but not limited to: (i) the distinctive designation of each
series and the number of shares that will constitute such series; (ii) the
voting rights, if any, of shares of such series; (iii) the dividend rate on the
shares of such series, any restriction, limitation or condition upon the payment
of such dividends, whether dividends shall be cumulative and the dates on which
dividends are payable; (iv) the prices at which, and the terms and conditions on
which, the shares of such series may be redeemed, if such shares are redeemable;
(v) the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of such series; (vi) any preferential amount payable upon
shares of such series in the event of the liquidation, dissolution or winding-up
of the Company or the distribution of its assets; and (vii) the prices or rates
of conversion at which, and the terms and conditions on which, the shares of
such series may be converted into other securities, if such shares are
convertible.
TRANSFER AGENT
The Transfer Agent and Registrar for the Class A Common Stock is
ChaseMellon Shareholder Services L.L.C., Ridgefield Park, New Jersey.
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PLAN OF DISTRIBUTION
GENERAL
The Company may sell Offered Debt Securities on a negotiated or
competitive bid basis to or through underwriters or dealers, and also may sell
Offered Debt Securities directly to other purchasers or through agents. The
Prospectus Supplement relating to an Offering of Debt Securities will describe
the method of distribution of the Offered Debt Securities.
The distribution of the Offered Debt Securities may be effected from
time to time in one or more transactions at a fixed price or prices, which may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
If underwriters are used in the offering of Offered Debt Securities,
the names of the managing underwriter or underwriters and any other
underwriters, and the terms of the transaction, including compensation of the
underwriters and dealers, if any, will be set forth in the Prospectus Supplement
relating to such offering. Only underwriters named in a Prospectus Supplement
will be deemed to be underwriters in connection with the Offered Debt Securities
described therein. Firms not so named will have no direct or indirect
participation in the underwriting of such Offered Debt Securities, although such
a firm may participate in the distribution of such Offered Debt Securities under
circumstances entitling it to a dealer's commission. It is anticipated that any
underwriting agreement pertaining to any Offered Debt Securities will (1)
entitle the underwriters to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act"), or to contribution for payments which the underwriters
may be required to make in respect thereof, (2) provide that the obligations of
the underwriters will be subject to certain conditions precedent, and (3)
provide that the underwriters generally will be obligated to purchase all
Offered Debt Securities if any are purchased.
The Company also may sell Offered Debt Securities to a dealer as
principal. In such event, the dealer may then resell such Offered Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale. The name of the dealer and the terms of the
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transaction will be set forth in the Prospectus Supplement relating thereto.
Offered Debt Securities also may be offered through agents designated
by the Company from time to time. Any such agent will be named, and the terms of
any such agency will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in such Prospectus Supplement, any such
agent will act on a best efforts basis for the period of its appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to
be underwriters (within the meaning of the Securities Act) of the Offered Debt
Securities described therein and, under agreements which may be entered into
with the Company, may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution for payments which they may be required to make in respect thereof.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters to solicit offers by certain institutional
investors to purchase Offered Debt Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Institutional investors with whom such contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions but shall in all cases be subject to the approval of the Company.
Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. Agents and underwriters
will not have any responsibility in respect of the validity of such contracts or
the performance of the Company or such institutional investors thereunder.
The anticipated place and time of delivery for the Offered Debt
Securities will be set forth in the Prospectus Supplement relating to the
offering thereof.
LEGAL MATTERS
The legality of the Debt Securities offered will be passed upon for
the Company by Leavy Rosensweig & Hyman, New York, New York. David Z.
Rosensweig, a partner in the firm of Leavy Rosensweig & Hyman, is the Secretary
and a director of the Company. Certain legal matters concerning the offering of
the Debt Securities will be passed upon for the Company by its securities
counsel, Whitman Breed Abbott & Morgan, New York, New York. Certain legal
matters will be passed upon for the underwriters or agents, if any, by Simpson
Thacher & Bartlett (a partnership which includes professional corporations),
New York, New York.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference to Century
Communications Corp.'s Annual Report on Form 10-K for the fiscal year ended May
31, 1996 and the combined financial statements of ML California Cable Division,
a division of ML Media Partners, L.P., for the years ended December 29, 1995 and
December 30, 1994, incorporated in this Prospectus by reference from Century
Communications Corp.'s Form 8-K/A2 dated August 16, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports which
are incorporated herein by reference and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering of the Debt
Securities, other than underwriting discounts and commissions, are as follows:
SEC registration fee....................................... $151,515.15
Printing and engraving expenses............................ 35,000*
Legal fees and expenses.................................... 50,000*
Accounting fees and expenses............................... 20,000*
Blue Sky fees and expenses (including counsel fees)........ 20,000*
Trustees' fees and expenses................................ 40,000*
Rating agency fees......................................... 90,000
Miscellaneous expenses..................................... 3,750*
-------------
Total.................................... $410,265.15
=============
- -------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the New Jersey Business Corporation Act provides
the following with respect to the indemnification of directors, officers and
employees:
(1) As used in this section,
(a) "Corporate agent" means any person who is or was
a director, officer, employee or agent of the indemnifying
corporation or of any constituent corporation absorbed by the
indemnifying corporation in a consolidation or merger and any
person who is or was a director,
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officer, trustee, employee or agent of any other enterprise,
serving as such at the request of the indemnifying
corporation, or of any such constituent corporation, or the
legal representative of any such director, officer, trustee,
employee or agent;
(b) "Other enterprise" means any domestic or foreign
corporation, other than the indemnifying corporation, and any
partnership, joint venture, sole proprietorship, trust, or
other enterprise, whether or not for profit, served by a
corporate agent;
(c) "Expenses" means reasonable costs, disbursements
and counsel fees;
(d) "Liabilities" means amounts paid or incurred in
satisfaction of settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or
completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any
inquiry or investigation which could lead to such action, suit
or proceeding; and
(f) References to "other enterprises" include
employee benefit plans; references to "fines" include any
excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the
indemnifying corporation" include any service as corporate
agent which imposes duties on, or involves services by, the
corporate agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in
the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation"
as referred to in this section.
(2) Any corporation organized for any purpose under any
general or special law of this State shall have the power to indemnify
a corporate agent against his expenses and liabilities in connection
with any proceeding involving the corporate agent by reason of his
being or having been such a corporate agent, other than a proceeding by
or in the right of the corporation, if
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(a) such corporate agent acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
best interests of the corporation; and
(b) with respect to any criminal proceeding, such
corporate agent had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment,
order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a
presumption that such corporate agent did not meet the
applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any
general or special law of this State shall have the power to indemnify
a corporate agent against his expenses in connection with any
proceeding by or in the right of the corporation to procure a judgment
in its favor which involves the corporate agent by reason of his being
or having been such corporate agent, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or
matter as to which such corporate agent shall have been adjudged to be
liable to the corporation, unless and only to the extent that the
Superior Court or the court in which such proceeding was brought shall
determine upon application that despite the adjudication of liability,
but in view of all circumstances of the case, such corporate agent is
fairly and reasonably entitled to indemnity for such expenses as the
Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any
general or special law of this State shall indemnify a corporate agent
against expenses to the extent that such corporate agent has been
successful on the merits or otherwise in any proceeding referred to in
subsections 14A:3-5(2) and 14A:3-5(3) or in defense of any claim, issue
or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and,
unless ordered by a court, under subsection 14A:3-5(3), may be made by
the corporation only as authorized in a specific case upon a
determination that indemnification is proper in the circumstances
because the corporate agent met the applicable standard of conduct set
forth in subsection 14A:3-5(2) or subsection 14A:3-5(3). Unless
otherwise
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provided in the certificate of incorporation or
bylaws, such determination shall be made
(a) by the board of directors or a committee thereof,
acting by a majority vote of a quorum consisting of directors
who were not parties to or otherwise involved in the
proceeding; or
(b) if such a quorum is not obtainable, or, even if
obtainable and such quorum of the board of directors or
committee by a majority vote of the disinterested directors so
directs, by independent legal counsel, in a written opinion,
such counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of
incorporation or by-laws or a resolution of the board of
directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with
a proceeding may be paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors
upon receipt of an undertaking by or on behalf of the corporate agent
to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified as provided in this section.
(7) (a) If a corporation upon application of a corporate agent
has failed or refused to provide indemnification as required under
subsection 14A:3-5(4) or permitted under subsections 14A:3-5(2),
14A:3-5(3) and 14A:3-5(6), a corporate agent may apply to a court for
an award of indemnification by the corporation, and such court
(i) may award indemnification to the extent
authorized under subsections 14A:3-5(2) and 14A:3-5(3) and
shall award indemnification to the extent required under
subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent
authorized by, and subject to the provisions of, subsection
14A:3-5(6), if the court shall find that the corporate agent
has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
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(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or
are to be incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding.
If the application is for indemnification arising out of a
civil action, it shall set forth reasonable cause for the
failure to make application for such relief in the action or
proceeding in which the expenses were or are to be incurred or
other amounts were or are to be paid.
The application shall set forth the disposition of any
previous application for indemnification and shall be made in
such manner and form as may be required by the applicable
rules of court or, in the absence thereof, by direction of the
court to which it is made. Such application shall be upon
notice to the corporation. The court may so direct that notice
shall be given at the expense of the corporation to the
shareholders and such other persons as it may designate in
such manner as it may require.
(8) The indemnification and advancement of expenses provided
by or granted pursuant to the other subsections of this section shall
not exclude any other rights, including the right to be indemnified
against liabilities and expenses incurred in proceedings by or in the
right of the corporation, to which a corporate agent may be entitled
under a certificate of incorporation, by-law, agreement, vote of
shareholders, or otherwise; provided that no indemnification shall be
made to or on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his acts
or omissions (a) were in breach of his duty of loyalty to the
corporation or its shareholders, as defined in subsection (3) of
N.J.S.14A:2-7, (b) were not in good faith or involved a knowing
violation of law or (c) resulted in receipt by the corporate agent of
an improper personal benefit.
(9) Any corporation organized for any purpose under any
general or special law of this State shall have the power to purchase
and maintain insurance on behalf of any corporate agent against any
expenses incurred in any proceeding and any liabilities asserted
against him by reason of his being or having been a corporate agent,
whether or not the corporation would
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have the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may purchase such
insurance from, or such insurance may be reinsured in whole or in part
by, an insurer owned by or otherwise affiliated with the corporation,
whether or not such insurer does business with other insureds.
(10) The powers granted by this section may be exercised by
the corporation, notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such
powers.
(11) Except as required by subsection 14A:3-5(4), no
indemnification shall be made or expenses advanced by a corporation
under this section, and none shall be ordered by a court, if such
action would be inconsistent with a provision of the certificate of
incorporation, a bylaw, a resolution of the board of directors or of
the shareholders, an agreement or other proper corporate action, in
effect at the time of the accrual of the alleged cause of action
asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or
the rights of indemnification to which a corporate agent may be
entitled.
(12) This section does not limit a corporation's power to pay
or reimburse expenses incurred by a corporate agent in connection with
the corporate agent's appearance as a witness in a proceeding at a time
when the corporate agent has not been made a party to the proceeding.
Paragraph (2) of Article Eighth of the Certificate of Incorporation
of the Company provides, in pertinent part, as follows:
The Corporation shall, to the fullest extent permitted by
Section 14A:3-5 of the Business Corporation Act, as the same may be
amended and supplemented, indemnify any and all corporate agents whom
it shall have the power to indemnify under said Section from and
against any and all of the expenses, liabilities or other matters
referred to in or covered by said Section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights
to which those indemnified may be entitled under any by-law, agreement,
vote of stockholders or otherwise and shall continue as to a person who
has ceased to be a corporate agent and shall inure to the benefit of
the heirs, executors, administrators and
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personal representatives of such a corporate agent. The term "corporate
agent" as used herein shall have the meaning attributed to it by
Sections 14A:3-5 and 14A:5-21 of the Business Corporation Act and by
any other applicable provision of law.
Section 6.1 of the By-laws of the Company provides, in pertinent
part, as follows:
The Corporation shall, to the full extent permitted by
applicable law, indemnify any person (and the heirs, executors and
administrators of such person) who, by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation or of a
constituent corporation absorbed by the Corporation in a consolidation
or merger or is or was serving at the request of the Corporation or
such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, was or is a party or is threatened to be made a party to:
(a) any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any such
action, suit or proceeding, or
(b) any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a
judgment in its favor, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit.
Any indemnification by the Corporation pursuant hereto shall be made
only in the manner and to the extent authorized by applicable law, and
any such indemnification shall not be deemed exclusive of any other
rights to which those seeking indemnification may otherwise be
entitled.
Section 6 of the Underwriting Agreement Basic Provisions, which
constitutes Exhibit 1 to this Registration Statement and is incorporated herein
by reference, provides for indemnification, under certain circumstances, of the
Company, certain of its directors and officers and persons who control the
Company against certain liabilities in
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connection with this offering, including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
1 - Form of Underwriting Agreement Basic Provisions,
with form of Terms Agreement attached
(incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form S-3 (Reg.
No. 33-33787)).
4.1 - Form of Senior Indenture.
4.2 - Form of Senior Subordinated Indenture.
4.3 - Form of Subordinated Indenture.
5 - Opinion of Leavy Rosensweig & Hyman.*
12 - Computation of Ratios of Earnings to Fixed
Charges.
23.1 - Consent of Deloitte & Touche LLP.
23.2 - Consent of Leavy Rosensweig & Hyman.
24 - Power of Attorney (included in Part II of the
Registration Statement).
25.1 - Statement of Eligibility and Qualification of
Trustee under the Senior Indenture,
on Form T-1.*
25.2 - Statement of Eligibility and Qualification of
Trustee under the Senior Subordinated
Indenture, on Form T-1.*
25.3 - Statement of Eligibility and Qualification of
Trustee under the Subordinated Indenture,
on Form T-1.*
- -----------------
* To be filed by amendment
ITEM 17. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
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(i) To include any prospectus required by Section
l0(a)(3) of the Securities Act of 1933;
(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;
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described under Item 15 above,
or otherwise, the Company has been advised that in the opinion
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of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling persons in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of New Canaan, State of Connecticut, on the 31st
day of March, 1997.
CENTURY COMMUNICATIONS CORP.
By /s/ Bernard P. Gallagher
_________________________________
Bernard P. Gallagher,
President and
Chief Operating Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Leonard Tow, Bernard P. Gallagher,
Scott N. Schneider and David Z. Rosensweig, his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes
as they might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons, in the capacities indicated on March 31, 1997.
<TABLE>
<CAPTION>
Name Title
---- -----
<S> <C>
/s/ Leonard Tow
_______________________________________ Chairman of the Board, Chief Executive Officer and
Leonard Tow Director (principal executive officer)
/s/ Scott N. Schneider
_______________________________________ Chief Financial Officer, Senior Vice President,
Scott N. Schneider Treasurer and Director (principal accounting officer)
/s/ Bernard P. Gallagher
_______________________________________ President, Chief Operating Officer and Director
Bernard P. Gallagher
_______________________________________ Director
William M. Kraus
/s/ David Z. Rosensweig
_______________________________________ Director
David Z. Rosensweig
_______________________________________ Director
Robert D. Siff
/s/ Peter J. Solomon
_______________________________________ Director
Peter J. Solomon
</TABLE>
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<PAGE>
<TABLE>
<S> <C>
/s/ Claire Tow
_______________________________________ Director
Claire Tow
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NUMBER
- ------- ---------------------- ------
<S> <C> <C>
1 - Form of Underwriting Agreement Basic Provisions,
with form of Terms Agreement attached
(incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form S-3 (Reg.
No. 33-33787)).
4.1 - Form of Senior Indenture.
4.2 - Form of Senior Subordinated Indenture.
4.3 - Form of Subordinated Indenture.
5 - Opinion of Leavy Rosensweig & Hyman.*
12 - Computation of Ratios of Earnings to Fixed
Charges.
23.1 - Consent of Deloitte & Touche LLP.
23.2 - Consent of Leavy Rosensweig & Hyman.
24 - Power of Attorney (included in Part II of the
Registration Statement).
25.1 - Statement of Eligibility and Qualification of
Trustee under the Senior Indenture,
on Form T-1.*
25.2 - Statement of Eligibility and Qualification of
Trustee under the Senior Subordinated Indenture,
on Form T-1.*
25.3 - Statement of Eligibility and Qualification of
Trustee under the Subordinated Indenture,
on Form T-1.*
</TABLE>
- -----------------
* To be filed by amendment
<PAGE>
<PAGE>
Exhibit 4.1
FORM OF SENIOR INDENTURE
================================================================================
CENTURY COMMUNICATIONS CORP.
and
--------------------------------,
Trustee
-------------
INDENTURE
Dated as of _________________
-------------
Senior Debt Securities
================================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.01. Definitions:
Act.................................................. 2
Affiliate; control................................... 2
Authorized Newspaper................................. 2
Board of Directors................................... 2
Board Resolution..................................... 2
Business Day......................................... 2
Capital Stock........................................ 2
Closing Price........................................ 3
Commission........................................... 3
Company.............................................. 3
Company Request; Company Order....................... 3
Corporate Trust Office............................... 3
corporation.......................................... 4
Defaulted Interest................................... 4
Event of Default..................................... 4
GAAP................................................. 4
Holder............................................... 4
Indenture............................................ 4
interest............................................. 4
Interest Payment Date................................ 4
Maturity............................................. 4
Officers' Certificate................................ 4
Opinion of Counsel................................... 4
Original Issue Discount Security..................... 5
Outstanding.......................................... 5
Paying Agent......................................... 6
Person............................................... 6
Place of Payment..................................... 6
Predecessor Security................................. 6
principal............................................ 6
principal amount..................................... 7
Redemption Date...................................... 7
Redemption Price..................................... 7
Regular Record Date.................................. 7
Reporting Date....................................... 7
Responsible Officer.................................. 7
Securities........................................... 7
Security Register and Security
Registrar.......................................... 7
Special Record Date.................................. 7
Stated Maturity...................................... 7
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Subsidiary........................................... 8
Trustee.............................................. 8
Trust Indenture Act.................................. 8
U.S. Government Obligations.......................... 8
Vice President....................................... 8
Section 1.02. Compliance Certificates and
Opinions........................................... 8
Section 1.03. Form of Documents Delivered
to Trustee......................................... 9
Section 1.04. Acts of Holders............................................. 10
Section 1.05. Notices, etc. to Trustee
and Company........................................ 11
Section 1.06. Notice to Holders; Waiver................................... 11
Section 1.07. Conflict with Trust Indenture
Act................................................ 12
Section 1.08. Effect of Headings and Table
of Contents........................................ 12
Section 1.09. Successors and Assigns...................................... 12
Section 1.10. Separability Clause......................................... 12
Section 1.11. Benefits of Indenture....................................... 12
Section 1.12. Governing Law............................................... 13
Section 1.13. Legal Holidays.............................................. 13
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally............................................. 13
Section 2.02. Form of Trustee's Certificate
of Authentication.................................. 14
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable
in Series.......................................... 14
Section 3.02. Denominations............................................... 17
Section 3.03. Execution, Authentication,
Delivery and Dating................................ 17
Section 3.04. Temporary Securities........................................ 18
Section 3.05. Registration, Registration of
Transfer and Exchange.............................. 19
Section 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.............................. 20
Section 3.07. Payment of Interest; Interest
Rights Preserved................................... 21
Section 3.08. Persons Deemed Owners....................................... 23
Section 3.09. Cancellation................................................ 23
Section 3.10. Computation of Interest..................................... 23
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ARTICLE FOUR
MISCELLANEOUS
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Section 4.01. Counterparts............................................... 24
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge
of Indenture...................................... 24
Section 5.02. Defeasance................................................. 25
Section 5.03. Application of Trust Money................................. 26
Section 5.04. Repayment of Moneys Held by
Paying Agent...................................... 27
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default.......................................... 27
Section 6.02. Acceleration of Maturity;
Rescission and Annulment.......................... 28
Section 6.03. Collection of Indebtedness and
Suits for Enforcement by Trustee.................. 30
Section 6.04. Trustee May File Proofs of Claim........................... 31
Section 6.05. Trustee May Enforce Claims
Without Possession of Securities.................. 32
Section 6.06. Application of Money Collected............................. 32
Section 6.07. Limitation on Suits........................................ 32
Section 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert....................... 33
Section 6.09. Restoration of Rights and
Remedies.......................................... 34
Section 6.10. Rights and Remedies Cumulative............................. 34
Section 6.11. Delay or Omission Not Waiver............................... 34
Section 6.12. Control by Holders......................................... 34
Section 6.13. Waiver of Past Defaults.................................... 35
Section 6.14. Undertaking for Costs...................................... 35
Section 6.15. Waiver of Stay or Extension Laws........................... 36
ARTICLE SEVEN
THE TRUSTEE
Section 7.01. Certain Duties and
Responsibilities.................................. 36
Section 7.02. Notice of Defaults......................................... 37
Section 7.03. Certain Rights of Trustee.................................. 38
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Section 7.04. Not Responsible for Recitals
or Issuance of Securities......................... 39
Section 7.05. May Hold Securities........................................ 40
Section 7.06. Money Held in Trust........................................ 40
Section 7.07. Compensation and Reimbursement............................. 40
Section 7.08. Disqualification; Conflicting
Interests......................................... 41
Section 7.09. Corporate Trustee Required;
Eligibility....................................... 41
Section 7.10. Resignation and Removal;
Appointment of Successor.......................... 41
Section 7.11. Acceptance of Appointment by
Successor......................................... 43
Section 7.12. Merger, Conversion, Consolidation
or Succession to Business......................... 45
Section 7.13. Preferential Collection of
Claims Against Company............................ 45
(a) Segregation and Apportionment
of Certain Collections by
Trustee, Certain Exceptions................. 45
(b) Certain Creditor Relationships
Excluded from Segregation
and Apportionment......................... 48
(c) Definitions of Certain Terms
Used in This Section...................... 49
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.01. Company to Furnish Trustee Names
and Addresses of Holders.......................... 50
Section 8.02. Preservation of Information;
Communications to Holders......................... 50
Section 8.03. Reports by Trustee......................................... 52
Section 8.04. Reports by Company......................................... 54
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Company May Consolidate, etc.
Only on Certain Terms............................. 55
Section 9.02. Successor Corporation Substituted.......................... 55
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Holders............................... 56
Section 10.02. Supplemental Indentures with
Consent of Holders............................... 57
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Section 10.03. Execution of Supplemental
Indentures....................................... 58
Section 10.04. Effect of Supplemental Indentures......................... 59
Section 10.05. Conformity with Trust Indenture
Act.............................................. 59
Section 10.06. Reference in Securities to
Supplemental Indentures.......................... 59
ARTICLE ELEVEN
COVENANTS
Section 11.01. Payment of Principal, Premium
and Interest..................................... 59
Section 11.02. Maintenance of Office or Agency........................... 59
Section 11.03. Money for Securities Payments
to Be Held in Trust.............................. 60
Section 11.04. Corporate Existence....................................... 62
Section 11.05. Payment of Taxes and Other
Claims........................................... 62
Section 11.06. Maintenance of Properties................................. 62
Section 11.07. Waiver of Certain Covenants............................... 63
Section 11.08. Statement by Officers as to
Default.......................................... 63
Section 11.09. Further Assurances........................................ 63
ARTICLE TWELVE
REDEMPTION OF SECURITIES
Section 12.01. Applicability of Article.................................. 64
Section 12.02. Election to Redeem; Notice
to Trustee....................................... 64
Section 12.03. Selection by Trustee of
Securities to Be Redeemed........................ 64
Section 12.04. Notice of Redemption...................................... 65
Section 12.05. Deposit of Redemption Price............................... 66
Section 12.06. Securities Payable on
Redemption Date.................................. 66
Section 12.07. Securities Redeemed in Part............................... 67
Section 12.08. Securities No Longer
Outstanding After Notice
to Trustee and Deposit
of Cash.......................................... 67
Section 12.09. Conversion Arrangement on
Call for Redemption.............................. 68
ARTICLE THIRTEEN
SINKING FUNDS
Section 13.01. Applicability of Article.................................. 69
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Section 13.02. Satisfaction of Sinking Fund
Payments with Securities......................... 69
Section 13.03. Redemption of Securities for
Sinking Fund..................................... 70
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Exemption from Individual
Liability........................................ 70
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes of Meetings...................................... 71
Section 15.02. Call of Meetings by Trustee............................... 71
Section 15.03. Call of Meetings by Company or
Holders.......................................... 72
Section 15.04. Qualification for Voting.................................. 72
Section 15.05. Quorum; Adjourned Meetings................................ 73
Section 15.06. Regulations............................................... 73
Section 15.07. Voting Procedure.......................................... 74
Section 15.08. Written Consent in Lieu of
Meetings......................................... 75
Section 15.09. No Delay of Rights by Meeting............................. 75
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
Section 16.01. Applicability of Article.................................. 75
Section 16.02. Right of Holders to Convert
Securities....................................... 76
Section 16.03. Issuance of Shares of Capital
Stock on Conversion.............................. 77
Section 16.04. No Payment or Adjustment for
Interest or Dividends............................ 78
Section 16.05. Adjustment of Conversion Rate............................. 78
Section 16.06. No Fractional Shares
to be Issued..................................... 83
Section 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance....................... 83
Section 16.08. Notice to Holders of a Series
Prior to Taking Certain
Types of Action.................................. 84
Section 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.................................... 85
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Section 16.10. Compliance with Governmental
Requirements..................................... 86
Section 16.11. Payment of Taxes Upon
Certificates for Shares
Issued Upon Conversion........................... 86
Section 16.12. Trustee's Duties With Respect
to Conversion Provisions......................... 86
TESTIMONIUM............................................................... 87
SIGNATURES AND SEALS...................................................... 87
ACKNOWLEDGMENTS
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INDENTURE, dated as of _________________, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 50
Locust Avenue, New Canaan, Connecticut 06840, to ________________________, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Inden-
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ture as a whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Seven, are defined in
that Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person shall mean 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 Person means the possession of the power
to direct or cause the direction of the management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise; and the terms "controlled by" and "under common control
with" have meanings correlative to the foregoing.
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York, and customarily
published on each Business Day, currently expected to be The Wall Street Journal
(National Edition). Where successive publications are required to be made in an
Authorized Newspaper, the successive publications may be made in the same or
different newspapers meeting the foregoing requirements and in each case on any
Business Day.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
"Capital Stock" shall mean, when used to refer to "Capital Stock"
into which Securities of a particular series are convertible, stock of any class
of the Company into which Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 3.01).
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"Closing Price", on any day when used with respect to any class
of Capital Stock, shall mean (i) if the stock is then listed or admitted to
trading on a national securities exchange in the United States, the last
reported sale price, regular way, for the stock as reported in the consolidated
transaction or other reporting system for securities listed or traded on such
exchange, or (ii) if the stock is listed on the National Association of
Securities Dealers, Inc. Automated Quotations System National Market System (the
"NASDAQ National Market System"), the last reported sale price, regular way, for
the stock, as reported on such list, or (iii) if the stock is not so admitted
for trading on any national securities exchange or the NASDAQ National Market
System, the average of the last reported closing bid and asked prices reported
by the National Association of Securities Dealers, Inc. Automated Quotations
System as furnished by any member in good standing of the National Association
of Securities Dealers, Inc. selected from time to time by the Company for that
purpose or as quoted by the National Quotation Bureau Incorporated. In the event
that no such quotation is available for any day, the Board of Directors shall be
entitled to determine the current market price on the basis of such quotations
as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in __________________________, at which at any particular time its
corporate trust business shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
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"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of
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acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or
redemption money or, as provided in Section 5.02 hereof, U.S. Government
Obligations, in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or,
except for purposes of Section 5.01, set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and
(iv) Securities converted into Capital Stock in accordance with
Article Sixteen hereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
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other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, or
upon such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any
day and for any purpose means the amount (including, without limitation, 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 such date and for such purpose (including, without limitation, in
connection with any sinking fund, upon any redemption at the option of the
Company upon any purchase or exchange at the option of the Company 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.
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"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series
of Securities, the date (and each successive anniversary thereof) established by
a Board Resolution pursuant to Section 3.01 which shall be a date no more than
ten months from the date of the initial issuance of such series of Securities
under this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer assigned to and working in the corporate trust department of
the Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means
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stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified in
Section 5.02.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitutes a condition
precedent), if any, 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 (including any covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or
representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this
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Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.07 and the record so proved
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the
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Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
(e) The Company or the Trustee, as applicable, may set a date for
the purpose of determining the Holders of Securities entitled to consent, vote
or take any other action referred to in this Section 1.04, which date shall be
not less than 10 days nor more than 60 days prior to the taking of the consent,
vote or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of the Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
and, unless otherwise herein expressly provided, any such document shall
be deemed to be sufficiently made, given, furnished or filed upon its
receipt by a Responsible Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with
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respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
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This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security. If the form of Securities of any
series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities. Any such Board Resolution or
record of such action shall have attached thereto a true and correct copy of the
form of Security referred to therein approved by or pursuant to such Board
Resolution.
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The Trustee's certificate of authentication shall be in
substantially the form set forth in this Article.
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 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated therein
issued under the within-mentioned Indenture.
------------------------------
as Trustee
By ___________________________
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
securities of the series pursuant to Section 3.04, 3.05, 3.06, 10.06 or
12.07);
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(3) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed or variable), or the
method of determination thereof, at which the Securities of the series
shall bear interest, if any, including the rate of interest applicable
on overdue payments of principal or interest, if different from the rate
of interest stated in the title of the Security, the date or dates from
which such interest shall accrue or the method of determination thereof,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Interest Payment
Date;
(5) the Paying Agent or Paying Agents for the Securities of the
series if other than the Trustee;
(6) the Place of Payment of the Securities of the series if other
than the Corporate Trust Office of the Trustee;
(7) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(11) if the provisions of Section 5.02 of this Indenture are to
apply to the Securities of the series, a statement indicating the same;
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(12) any deletions from or modifications of or additions to the
Events of Default set forth in Section 6.01 pertaining to the Securities
of the series;
(13) the form of the Securities of the series;
(14) the obligation, if any, of the Company to permit the
conversion of the Securities into Capital Stock and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion rate, the conversion period
and any other provision in addition to or in lieu of those set forth in
this Indenture relative to such obligation);
(15) any other terms of a particular series and any other
provisions expressing or referring to the terms and conditions upon
which the Securities of that series are to be issued, which terms and
provisions are not in conflict with the provisions of this Indenture or
do not adversely affect the rights of Holders of any other series of
Securities then Outstanding); provided, however, that the addition to or
subtraction from or variation of Articles Five, Six, Nine and Eleven
(and Section 1.01 insofar as it relates to the definition of certain
terms as used in such Articles) with regard to the Securities of a
particular series shall not be deemed to constitute a conflict with the
provisions of those Articles; and
(16) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities of all series shall rank on a parity in right of
payment.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as
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shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon the documents specified in Section 314 of the
Trust Indenture Act, and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board
Resolution, certified by the Secretary or Assistant Secretary of the
Company;
(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state:
(1) that the form and terms of such Securities have been
established by or pursuant to Board Resolutions, by a supplemental
indenture or by both such resolution or resolutions and such
supplemental
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indenture in conformity with the provisions of this
Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles, and will be entitled to the benefits of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
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If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of an equal aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
12.03 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
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authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
At the option of the Company, interest on the Securities of any
series that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at
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its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be canceled by it
and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered promptly
shall be canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.01. Counterparts.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 11.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation (other than Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in
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Section 3.06), for principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 5.03 and the
last paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Company shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S.
Government Obligations (as defined below) as will, or will together with the
income thereon without consideration of any reinvestment thereof, be sufficient
to pay all sums due for the principal of (and premium, if any) and interest, if
any, on the Securities of such series, as they shall become due from time to
time, and shall pay all costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) the Company's obligations, as the
case may be, with respect to Securities of such series under Sections 3.05, 3.06
and 11.02, (ii) rights of Holders to receive payments of the principal of (and
premium, if any) and interest, if any, on the Securities of such series as they
shall become due from time to time and other rights, duties and obligations of
Holders as beneficiaries hereof with respect to the amounts so deposited with
the Trustee, (iii) rights of conversion of any Security, the terms of which
provide for conversion (which shall continue in full force and effect pursuant
to the terms set forth in Article Sixteen to the extent provided for in such
terms), and (iv) the rights, obligations and immunities of the Trustee hereunder
(for which purposes the Securities of such series
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shall be deemed outstanding)), and the Trustee, on the written request of the
Company, accompanied by the Officer's Certificate and Opinion of Counsel
required by Section 1.02, shall execute and deliver to the Company such
instruments as shall be requisite to evidence the satisfaction thereof with
respect to Securities of such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03,
all money deposited with the Trustee pursuant to Sections 5.01 and 5.02 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for one year and eleven
months after the date upon which the principal of or interest on such Securities
shall have become due and payable, shall be repaid to the Company by the Trustee
or any such other Paying Agent and such holders shall thereafter be entitled to
look to the
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Company only as general creditors for payment thereof (unless otherwise provided
by law); provided, however, that, before the Trustee or any such other Paying
Agent is required to make any such payment to the Company, the Trustee may, upon
the request of the Company and at the expense of the Company, cause to be
published once in an Authorized Newspaper a notice that such money remains
unclaimed and that, after the date set forth in said notice, the balance of such
money then unclaimed will be returned to the Company.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment or
analogous obligation, when and as due by the terms of any Security of
that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of that series
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
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written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
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If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.13.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days,
(2) default is made in the payment of the principal of (or,
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant
to the terms of any Security,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or
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agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect
of the Securities and to file such other papers or documents and take
such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such
matter, as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding except as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
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person or to participate as a member, voting or otherwise, on any committee of
creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60- day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.07) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date), the right, which is also absolute and unconditional, to require the
conversion of his Securities pursuant to Article Sixteen hereof if the terms of
such Securities provide for convertibility pursuant to Section 3.01 and the
right to institute suit for the enforcement of any such payment or of such right
to convert, and such rights shall not be impaired without the consent of such
Holder.
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SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 6.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
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(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders of the Securities of such
series not taking part in such direction, or to the Holders of the
Securities of any other series, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, 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 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment
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of the principal of (or premium, if any) or interest on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture but need not verify the accuracy of the contents thereof or
whether procedures specified by or pursuant to the provisions of this
Indenture have been followed in the preparation thereof.
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(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise 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.
(c) 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
(1) this subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
6.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or
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waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking fund or analogous obligation instalment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided, further,
that in the case of any default of the character specified in Section 6.01(4)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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 and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(h) the Trustee shall not be deemed to have notice or knowledge
of any matter unless a Responsible Officer assigned to and working in
the Trustee's corporate trust department has actual knowledge thereof or
unless written notice thereof is received by the Trustee at the
Corporate Trust Office and such notice references the Securities
generally, the Company or this Indenture. Whenever reference is made in
this Indenture to an Event of Default, such reference shall, insofar as
determining any liability on the part of the Trustee is concerned, be
construed to refer only to an Event of Default of which the Trustee is
deemed to have knowledge in accordance with this paragraph; and
(i) the permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed
as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securi-
ties, except the Trustee's certificate of authentication,
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shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
SECTION 7.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 7.08 and 7.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder.
SECTION 7.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses, including reasonable attorneys' fees, of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
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As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of particular Securities.
SECTION 7.08. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded this Indenture with respect to Securities of any particular series of
Securities other than that series. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in the Borough of Manhattan, The City of New York or in
Los Angeles, California. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of
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acceptance by a successor Trustee required by Section 7.11 shall not have been
delivered to the Trustee within 10 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable
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requirements of Section 7.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 7.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event to all Holders of Securities of such
series as their names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or
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more (but not all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however,
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to the rights, if any, of the Company and its other
creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the pro-
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ceeds thereof shall be apportioned among the Trustee, the Holders and the
holders of other indenture securities in such manner that the Trustee, the
Holders and the holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
the same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion among the Trustee, the Holders
and the holders of other indenture securities, in accordance with the provisions
of this paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to
give to the provisions of this paragraph due consideration in determining the
fairness of the distributions to be made to the Trustee and the Holders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of
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this subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the
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classification of self-liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the
Securities at the time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
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ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, either (i) not later than June 1 and November
1 in each year in the case of Original Issue Discount Securities of any
series which by their terms do not bear interest prior to Maturity, or
(ii) not more than 15 days after each Regular Record Date in the case of
Securities of any other series, a list, each in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding June 1 or November 1 or as
of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar with
respect to Securities of any series, no such lists need be furnished.
SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein 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 with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such
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applicants propose to transmit to such other Holders, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the informa-
tion preserved at the time by the Trustee in accordance
with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 8.02(a) 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
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 Holders 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) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held responsible by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 8.02(b), regardless of the source from which
such information was
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derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring
subsequent to the initial issuance of Securities hereunder and within 60 days
after each Reporting Date occurring thereafter, the Trustee shall transmit by
mail to the Holders, as hereinafter provided, a brief report (but in no event
shall such report be transmitted more than twelve months after the date of the
initial issuance of the Securities in the case of the first such report and at
stated intervals of more than twelve months in the case of each subsequent
report) dated as of such Reporting Date with respect to any of the following
events which may have occurred during the twelve months preceding the date of
the report (but if no such event has occurred within such period, no report need
be transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a lien
or charge, prior to that of the Securities, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Securities Outstanding for which it is Trustee on the date
of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising
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in any manner described in Section 7.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding for which it is
Trustee at such time, such report to be transmitted within 90 days after such
time.
(c) All reports required by this Section 8.03, and all other
reports or notices which are required by any other provision of this Indenture
to be transmitted in accordance with the provisions of this Section 8.03, shall
be transmitted by mail: (i) to all registered Holders, as their names and
addresses appear in the Security Register; (ii) to such Holders of such series
as have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
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Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
and
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the
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predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities pursuant to Article Nine and to
provide for the adjustment of conversion pursuant to Section 16.07; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series of Securities,
stating that such Events of Default are expressly being included solely
to be applicable to such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to provide for
uncertificated Securities (so long as any "registration-required
obligation" within the meaning of section 163(f)(2) of the Internal
Revenue Code of 1986, as amended, is in registered form for purposes of
such section); or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to
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the execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or alter or impair the right to
convert any Security at the rate and upon the terms provided for in this
Indenture or the form of such Security, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the
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Maturity thereof pursuant to Section 6.02, or adversely affect any right
of repayment at the option of the Holder of any Security, or reduce the
amount of, or postpone the date fixed for, the payment of any sinking
fund or analogous obligation, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
Notwithstanding the foregoing, no consent of the Holders shall be necessary to
permit the execution of supplemental indentures pursuant to Section 16.07. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee in its sole discretion may, but shall not be obligated
to, enter into any such supplemental indenture
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which adversely affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders
of Securities of each series that it will duly and punctually pay the principal
of (and premium, if any) and interest, if any, on the Securities of that series
in accordance with the terms of the Securities of that series and this
Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency, where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and
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demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where the Securities may be presented for
payment or, for Securities of each series that is convertible, for conversion.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 11.03. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Company (or by any
other obligor on the Securities of that series) to make any payment of the
principal of (and premium, if any) or interest, if any, on the Securities of
such series when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit
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of the Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the
Trustee for any series of Securities, 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, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on the Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request subject to
applicable abandoned property and escheat law, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability
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of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published once
a week for two consecutive weeks (in each case on any day of the week) in an
Authorized Newspaper notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of its properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business and not disadvantageous in any material respect to the
Holders of the Securities of any series.
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SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 11.04, 11.05 and 11.06,
with respect to the Securities of any series, if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each fiscal
year, commencing with the first fiscal year following the issuance of Securities
of any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of such Securities to the end of the fiscal year in which such Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of the signer, the Company has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signer has obtained knowledge of any default by the Company in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purpose of this Section 11.08,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee,
the Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
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ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 12.03. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided, however, that
Securities of such series registered in the name of the Company shall be
excluded from any such selection for redemption until all Securities of such
series not so registered shall have been previously selected for redemption. For
the purposes of such selection in case of redemption of less than all the
Securities of any series, the Trustee and the Company shall have the option to
treat as Outstanding Securities any Securities of such series which are
surrendered for conversion after the fifteenth day
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immediately preceding the mailing of notice of such redemption, and need not
treat as Outstanding Securities any Securities authenticated and delivered
during such period in exchange for the unconverted portion of any Securities
converted in part during such period.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
Notice of redemption shall be given not less than 10 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) if applicable, the current conversion price
or rate,
(6) if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other day as may be specified
as contemplated by Section 3.01 for Securities of any series),
(7) if applicable, that Holders who want to
convert Securities called for redemption must satisfy
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the requirements for conversion contained in such
Securities,
(8) that, subject to Section 16.04, interest, if any, accrued to
the date fixed for redemption will be paid as specified in said notice,
(9) the place or places where such Securities are
to be surrendered for payment of the Redemption Price,
and
(10) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 12.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date other than any Securities of such series
called for redemption on such date which have been converted prior to the date
of such deposit.
SECTION 12.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. The right to
convert such Securities or portions thereof, if the terms of such Securities
provide for conversion pursuant to Section 3.01, shall terminate at the close of
business on the Redemption Date or such other day as may be specified as
contemplated by Section 3.01 for Securities of such Series. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, subject to Section
16.04, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders
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of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Security called for redemption pursuant to Section 12.01
is converted pursuant to Article Sixteen, any monies deposited with the Trustee
for the purpose of paying or redeeming any such Security shall be promptly paid
to the Company.
SECTION 12.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the security so surrendered. Securities in denominations larger than $1,000 may
be redeemed in part, but only in whole multiples of $1,000.
SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any Securities of any series or portions thereof
called for redemption in whole or in part cash or other form of payment if
permitted by the terms of such Securities (which amount shall be immediately due
and payable to the Holders of such Securities or portions thereof) in the amount
necessary so to redeem all such Securities or portions thereof on the Redemption
Date and provision satisfactory to the Trustee shall have been made for the
giving of notice of such redemption, such Securities or portions thereof, shall
thereupon, for all purposes of this Indenture, be deemed to be no longer
Outstanding, and the Holders thereof shall be
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entitled to no rights thereunder or hereunder, except the right to receive
payment of the Redemption Price, together with interest accrued to the
Redemption Date, on or after the Redemption Date of such Securities or portions
thereof and the right to convert such Securities or portions thereof, if the
terms of such Securities provide for convertibility pursuant to Section 3.01 at
or prior to the close of business on the Redemption Date.
SECTION 12.09. Conversion Arrangement
on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee or the Paying Agent in trust
for the Holders, on or before 10:00 a.m. New York time on the Redemption Date,
an amount no less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Sixteen) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment of the
above amount aforesaid. The Trustee or the Paying Agent shall hold and pay to
the Holders whose Securities are selected for redemption any such amount paid to
it in the same manner as it would moneys deposited with it by the Company for
the redemption of Securities. Without the Trustee's and the Paying Agent's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee or the
Paying Agent as set forth in this Indenture, and the Company agrees to indemnify
the Trustee and the Paying Agent from, and hold them harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and
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expenses incurred by the Trustee and the Paying Agent in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited or
converted pursuant to the terms of such Securities. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
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SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the
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obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of the Securities.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be
called at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken
by the Holders of Securities pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified percentage in aggregate principal
amount of the Securities of all or any series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 15.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of all or any series to take any action specified in Section 15.01,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, as the Trustee shall determine. Notice of every meeting of the
Holders of Securities of all or any series, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given to all Holders of Securities of each series that may be
affected by the action proposed to be taken at such meeting by publication at
least twice in an
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Authorized Newspaper prior to the date fixed for the meeting, the first
publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting, and the last publication to be not more than five days
prior to the date fixed for the meeting, or such notice may be given to Holders
by mailing the same by first class mail, postage prepaid, to the Holders of
Securities at the time Outstanding, at their addresses as they shall appear in
the Security Register, not less than 20 nor more than 60 days prior to the date
fixed for the meeting. Failure to receive such notice or any defect therein
shall in no case affect the validity of any action taken at such meeting. Any
meeting of Holders of Securities of all or any series shall be valid without
notice if the Holders of all such Securities Outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 15.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of each series that may be affected by the action proposed to be
taken at the meeting shall have requested the Trustee to call a meeting of
Holders of Securities of all series that may be so affected to take any action
authorized in Section 15.01 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or made the first publication of the notice of such meeting within
30 days after receipt of such request, then the Company or the Holders in the
amount above specified may determine the time and the place in the Borough of
Manhattan, The City of New York for such meeting and may call such meeting by
mailing or publishing notice thereof as provided in Section 15.02.
SECTION 15.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall
(a) be a Holder of one or more Securities of a series affected by the action
proposed to be taken, or (b) be a Person appointed by an instrument in writing
as proxy by the Holder of one or more such Securities. The right of Holders to
have their votes counted shall be subject to the proviso in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
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SECTION 15.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the case of mailing, such notice may be
mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in
writing complying with the provisions of Section 1.04 shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided, however, that such Holder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all Holders of such series of Securities whether or not
present or represented at the meeting.
SECTION 15.06. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
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The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.03, in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled
to vote at such meeting, or proxy therefor, shall be entitled to one vote
for each $1,000 principal amount (in the case of Original Issue Discount
Securities, such principal amount to be determined as provided in the
definition of "Outstanding") of Securities of such series held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 15.02 or 15.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 15.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballot on which shall be subscribed the signatures of the
Holders of Securities entitled to vote at such meeting, or proxies therefor, and
on which shall be inscribed an identifying number or numbers or to which shall
be attached a list of identifying numbers of the Securities so held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders of Securities
shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspectors of votes on any vote by
ballot taken thereat and affidavits by one or more Persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed or published as provided in Section 15.02 and, if
applicable, Section 15.05. The record shall be signed and verified by the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered
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to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the
requisite percentage in aggregate principal amount of Securities of any series
herein provided, entitled to vote at any such meeting, evidenced as provided in
Section 1.04 and filed with the Trustee, shall be effective in lieu of a meeting
of the Holders of Securities of such series, with respect to any matter provided
for in this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
SECTION 16.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock
at the option of the Holder shall be convertible in accordance with their terms
and (unless otherwise specified as contemplated by Section 3.01 for Securities
of any series) in accordance with this Article. Each reference in this Article
Sixteen to "a Security" or "the Securities" refers to the Securities of the
particular series that is convertible into Capital Stock. If more than one
series of Securities with conversion privileges are outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
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SECTION 16.02. Right of Holders to
Convert Securities.
Subject to and upon compliance with the terms of the Securities
and the provisions of Section 12.09 and this Article Sixteen, at the option of
the Holder thereof, any Security of any series of any authorized denomination,
or any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date except that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such right shall terminate upon
receipt of written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the Capital
Stock into which such Security is convertible as specified in such Security, at
the conversion rate for each $1,000 principal amount of Securities in effect on
the conversion date (such conversion rate reflecting the initial conversion rate
specified in such Security or, in case an adjustment in the conversion rate has
taken place pursuant to the provisions of Section 16.05, then the applicable
conversion rate as so adjusted) upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 11.02, accompanied by a written notice
of election to convert as provided in Section 16.03 and, if so required by the
Company and the Trustee, by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee duly executed by the registered
Holder or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and canceled by it, or shall, if
surrendered to the Trustee, be canceled by it, as provided in Section 3.09.
The initial conversion rate in respect of a series of Securities
shall be as specified in the Securities of such series. The conversion rate will
be subject to adjustment on the terms set forth in Section 16.05 or such other
or different terms, if any, as may be specified by Section 3.01 for Securities
of such series. Provisions of this Indenture that apply to conversion of all of
a Security also apply to conversion of a portion of it.
SECTION 16.03. Issuance of Shares of
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Capital Stock on Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Company shall
deliver or cause to be delivered at its said office or agency to or upon the
written order of the Holder of the Security or Securities so surrendered a
certificate or certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Capital Stock into which such
Security or Securities may be converted in accordance with the terms thereof and
the provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Company or the Trustee, the
rights of the Holder of such Security or Securities as a Holder shall cease at
such time, the person or persons entitled to receive the shares of Capital Stock
upon conversion of such Security or Securities shall be treated for all purposes
as having become the record holder or holders of such shares of Capital Stock at
such time and such conversion shall be at the conversion rate in effect at such
time. In the case of any Security of any series which is converted in part only,
upon such conversion, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, as requested by such Holder, a
new Security or Securities of such series of authorized denomination in
aggregate principal amount equal to the unconverted portion of such Security.
If the last day on which a Security may be converted is not a
Business Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for
shares of Capital Stock upon conversion while its stock transfer books are
closed for a meeting of shareholders or for the payment of dividends or for any
other purpose, but certificates for shares of Capital Stock
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shall be delivered as soon as the stock transfer books shall again be opened.
SECTION 16.04. No Payment or Adjustment
for Interest or Dividends.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date for payment of defaulted interest) next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such Interest Payment Date;
provided, however, that if the Company shall default in the payment of said
interest, such funds shall be returned to the payer thereof. Payment of interest
shall be made, as of such Interest Payment Date or such date, as the case may
be, to the Holder of record as of such Regular, or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of shares of Capital
Stock into which such Security is convertible delivered by the Company to the
Holder thereof shall be applied, first, to pay the accrued original issue
discount attributable to the period from the date of issuance to the date of
conversion of such Security, and, second, to pay the balance of the principal
amount of such Security.
SECTION 16.05. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution in the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such
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series are convertible into a smaller number of shares, or (iv) issue by
reclassification of the shares of the class of Capital Stock into which
Securities of such series are convertible (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing corporation) any shares, the conversion rate for the Securities of
such series in effect at the time of the record date for such dividend or
distribution, or the effective date of such subdivision, combination or
reclassification, shall be proportionately adjusted so that the Holder of any
Security of such series surrendered for conversion after such time shall be
entitled to receive the number and kind of shares which he would have owned or
have been entitled to receive had such Security been converted immediately prior
to such time. Similar adjustments shall be made whenever any event listed above
shall occur.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (d) below) on the date on
which such issuance was declared or otherwise announced by the Company (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the number of shares of such class of Capital Stock
outstanding on the Determination Date plus the number of additional shares of
such class of Capital Stock offered for subscription or purchase (or in the case
of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
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shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Company 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 to the extent that shares of such
class of Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration of such
rights or warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the expiration of
the conversion right of such securities) the conversion rate shall be readjusted
to the conversion rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants (or securities convertible into
shares) been made upon the basis of delivery of only the number of shares
actually delivered. In the event that such rights or warrants are not so issued,
the conversion rate shall again be adjusted to be the conversion rate which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the class of Capital Stock into which
Securities of such series are convertible (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of its indebtedness or assets (excluding
any cash dividends paid from retained earnings and dividends payable in Capital
Stock for which adjustment is made pursuant to subsection (a) above) or
subscription rights or warrants (excluding subscription rights or warrants to
purchase the class of Capital Stock into which Securities of such series are
convertible), the number of shares of such class of Capital Stock into which
each $1,000 principal amount of Securities of such series shall be convertible
after such record date shall be determined by multiplying the number of shares
of such class of Capital Stock into which such principal amount of Securities
was convertible immediately prior to such record date by a fraction, of which
the numerator shall be the fair market value of the assets of the Company, after
deducting therefrom all liabilities of the Company and all preferences
(including accrued by unpaid dividends) in
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respect of classes of Capital Stock having a preference with respect to the
assets of the Company over such class of Capital Stock (all as determined by the
Board of Directors, whose determination shall be conclusive, and described in a
certificate signed by the Chairmen of the Board, the President, any Vice
President, the Treasurer or the Controller of the Company, filed with the
Trustee and each conversion agent) on such record date, and of which the
denominator shall be such fair market value after deducting therefrom such
liabilities and preferences, less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive, and described in a
statement filed with the Trustee and each conversion agent) of the assets or
evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above
and Section 16.06, the current market price per share of the Capital Stock on
any date as of which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business Days commencing 45 Business Days
before such date.
(e) No adjustment in the conversion rate shall be required unless
such adjustment would require a cumulative increase or decrease of at least 1%
in such rate; provided however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article Sixteen (other than this subsection (e)) not later than such time as may
be required in order to preserve the tax-free nature of a distribution for
United States income tax purposes to the Holders of Securities or the class of
Capital Stock into which such Securities are convertible. All calculations under
this Article Sixteen shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be. Anything in this Section 16.05 to
the contrary notwithstanding, the Company shall be entitled to make such
adjustments in the conversion rate, in addition to those required by this
Section 16.05, as it in its discretion shall determine to be advisable in order
that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible into or
exchangeable for stock
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<PAGE>
<PAGE>
hereafter made by the Company to its shareholders shall not be taxable for
United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein provided,
the Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Securities of such series
pursuant to Section 11.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Holder of such
series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders of such
series, as their names and addresses appear upon the Security Register.
(g) In the event that at any time, as a result of shares of any
other class of Capital Stock becoming issuable in exchange or substitution for
or in lieu of shares of the class of Capital Stock into which such Securities
are convertible or as a result of an adjustment made pursuant to subsection (a)
above, the Holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company other than
shares of the class of Capital Stock into which the Securities of such series
are convertible, thereafter the number of such other shares so receivable upon
conversion of any Security 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 class of Capital Stock into which the Securities of such series
are convertible contained in subsections (a) to (f), inclusive, above, and the
provisions of this Article Sixteen with respect to the class of Capital Stock
into which the Securities of such series are convertible shall apply on like
terms to any such other shares.
(h) The conversion rate with respect to any Original Issue
Discount Securities, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Securities for accrued
original issue discount.
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<PAGE>
<PAGE>
(i) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions of this
Section 16.05 shall apply separately to events affecting each such class.
SECTION 16.06. No Fractional Shares to be Issued.
No fractional shares of Capital Stock shall be issued upon
conversions of Securities. If more than one Security of any series shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so surrendered.
Instead of a fraction of a share of Capital Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction of
a share in an amount equal to the same fractional interest of the current market
price (as defined in Section 16.05) per share of Capital Stock on the Business
Day next preceding the day of conversion.
SECTION 16.07. Preservation of Conversion Rights
Upon Consolidation, Merger, Sale
or Conveyance.
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in the case of any sale or
transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, subject to the provisions of Articles Nine and Ten as
they relate to supplemental indentures, providing that the Holder of each
Security then Outstanding of a series which was convertible into Capital Stock
shall have the right thereafter to convert such Security into the kind and
amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Capital Stock of the Company into which such Securities
might have been converted immediately prior to such consolidation, merger, sale
or transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Sixteen. Neither the Trustee
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<PAGE>
nor any conversion agent shall be under any responsibility to determine the
correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Holders upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 7.01, may accept
as conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 16.07 shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.08. Notice to Holders of a Series Prior
to Taking Certain Types of Action.
With respect to the Securities of any series, in case:
(a) the Company shall authorize the issuance to all holders of
the class of Capital Stock into which Securities of such series are
convertible of rights or warrants to subscribe for or purchase shares of
its Capital Stock or of any other right;
(b) the Company shall authorize the distribution to all holders
of the class of Capital Stock into which Securities of such series are
convertible of evidences of its indebtedness or assets (except for the
exclusions with respect to certain dividends set forth in Section
16.05(c));
(c) of any subdivision, combination or reclassification of the
class of Capital Stock into which Securities of such series are
convertible or of any consolidation or merger to which the Company is a
party and for which approval by the shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
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<PAGE>
then the Company shall cause to be filed with the Trustee at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 11.02, and shall cause to be mailed to the Holders of such
series, at their last addresses as they shall appear upon the Security Register,
at least ten days prior to the applicable record date hereinafter specified, a
notice stating (i) the date as of which the holders of such class of Capital
Stock to be entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of such class of Capital
Stock shall be entitled to exchange their Capital Stock of such class for
securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 16.08 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
SECTION 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
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<PAGE>
<PAGE>
SECTION 16.10. Compliance with Governmental Requirements.
The Company covenants that if any shares of Capital Stock
required to be reserved for purposes of conversion of Securities hereunder
require registration or listing with or approval of any governmental authority
under any Federal or State law, pursuant to the Securities Act of 1933, as
amended, or the Securities Exchange Act, or any national or regional securities
exchange on which such Capital Stock is listed at the time of delivery of any
shares of such Capital Stock, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion.
The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such name as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 16.12. Trustee's Duties With Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the conversion rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any
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<PAGE>
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversions, and the Trustee, subject to the provisions of
Section 7.01, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article Sixteen.
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<PAGE>
________________________________ hereby accepts the trusts in
this Indenture, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[CORPORATE SEAL]
Attest: CENTURY COMMUNICATIONS CORP.
__________________________ By____________________________
Secretary
[CORPORATE SEAL]
Attest: ___________________________,
as Trustee
___________________________ By____________________________
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<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of ,
before me personally came , to me known, who, being by me duly
sworn, did depose and say that he is of CENTURY
COMMUNICATIONS CORP., one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
-----------------------------------
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On the day of , before me
personally came , to me known, who, being by me duly sworn, did
depose and say that he is of ______________________________, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
------------------------------------
Notary Public
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of
and
Trust Indenture Act of 1939, as amended
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
310(a)(1)...................................................... 7.09
(a)(2)...................................................... 7.09
(a)(3)...................................................... Not applicable
(a)(4)...................................................... Not applicable
(b)......................................................... 7.08, 7.10
311(a)......................................................... 7.13(a)
(b)......................................................... 7.13(b)
312(a)......................................................... 8.01, 8.02(a)
(b)......................................................... 8.02(b)
(c)......................................................... 8.02(c)
313(a)......................................................... 8.03(a)
(b)(1)...................................................... Not applicable
(b)(2)...................................................... 8.03(b)
(c)......................................................... 8.03(c)
(d)......................................................... 8.03(c)
314(a)......................................................... 8.04
(a)(4)...................................................... 11.08
(b)......................................................... Not applicable
(c)(1)...................................................... 1.02
(c)(2)...................................................... 1.02
(c)(3)...................................................... Not applicable
(d)......................................................... Not applicable
(e)......................................................... 1.02
315(a)......................................................... 7.01(a)
(b)......................................................... 7.02,
8.03(a)(6)
(c)......................................................... 7.01(b)
(d)(1)...................................................... 7.01(a)
(d)(2)...................................................... 7.01(a)
(d)(3)...................................................... 7.01(c)
(e)......................................................... 6.14
316(a)(1)(A)................................................... 6.12
(a)(1)(B)................................................... 6.13
(a)(2)...................................................... Not applicable
(b)......................................................... 6.08
317(a)(1)...................................................... 6.03
(a)(2)...................................................... 6.04
(b)......................................................... 11.03
318(a)......................................................... 1.07
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<PAGE>
Exhibit 4.2
FORM OF SENIOR SUBORDINATED INDENTURE
================================================================================
CENTURY COMMUNICATIONS CORP.
and
______________________________, Trustee
-------------
INDENTURE
Dated as of ________________
-------------
Senior Subordinated Debt Securities
================================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES.................................................................. 1
RECITALS OF THE COMPANY.................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
Section 1.01. Definitions:
Act................................................. 2
Affiliate; control.................................. 2
Authorized Newspaper................................ 2
Bank Credit Agreement............................... 2
Bank Notes.......................................... 2
Bank Obligations.................................... 2
Board of Directors.................................. 3
Board Resolution.................................... 3
Business Day........................................ 3
Capital Stock....................................... 3
Century/Texas....................................... 3
Closing Price....................................... 3
Commission.......................................... 4
Company............................................. 4
Company Request; Company Order...................... 4
Corporate Trust Office.............................. 4
corporation......................................... 4
Currency Agreement.................................. 4
Defaulted Interest.................................. 4
Event of Default.................................... 4
GAAP................................................ 4
Holder.............................................. 5
Indenture........................................... 5
interest............................................ 5
Interest Payment Date............................... 5
Interest Swap Obligations .......................... 5
Maturity............................................ 5
Officers' Certificate............................... 5
Opinion of Counsel.................................. 5
Original Issue Discount Security.................... 5
Outstanding......................................... 5
Paying Agent........................................ 7
Person.............................................. 7
Place of Payment.................................... 7
Predecessor Security................................ 7
principal........................................... 7
principal amount.................................... 7
Redemption Date..................................... 7
Redemption Price.................................... 8
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Regular Record Date................................. 8
Reporting Date...................................... 8
Responsible Officer................................. 8
Securities.......................................... 8
Security Register and Security
Registrar......................................... 8
Senior Indebtedness................................. 8
Special Record Date................................. 9
Stated Maturity..................................... 9
Subsidiary.......................................... 10
Trustee............................................. 10
Trust Indenture Act................................. 10
U.S. Government Obligations......................... 10
Vice President...................................... 10
Section 1.02. Compliance Certificates and
Opinions.......................................... 10
Section 1.03. Form of Documents Delivered
to Trustee........................................ 11
Section 1.04. Acts of Holders............................................ 12
Section 1.05. Notices, etc. to Trustee
and Company....................................... 13
Section 1.06. Notice to Holders; Waiver.................................. 13
Section 1.07. Conflict with Trust Indenture
Act............................................... 14
Section 1.08. Effect of Headings and Table
of Contents....................................... 14
Section 1.09. Successors and Assigns..................................... 14
Section 1.10. Separability Clause........................................ 14
Section 1.11. Benefits of Indenture...................................... 15
Section 1.12. Governing Law.............................................. 15
Section 1.13. Legal Holidays............................................. 15
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally............................................ 15
Section 2.02. Form of Trustee's Certificate
of Authentication................................. 16
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable
in Series......................................... 16
Section 3.02. Denominations.............................................. 19
Section 3.03. Execution, Authentication,
Delivery and Dating............................... 19
Section 3.04. Temporary Securities....................................... 20
Section 3.05. Registration, Registration of
Transfer and Exchange............................. 21
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Section 3.06. Mutilated, Destroyed, Lost
and Stolen Securities............................. 22
Section 3.07. Payment of Interest; Interest
Rights Preserved.................................. 23
Section 3.08. Persons Deemed Owners...................................... 25
Section 3.09. Cancellation............................................... 25
Section 3.10. Computation of Interest.................................... 25
ARTICLE FOUR
SUBORDINATION OF SECURITIES
Section 4.01. Securities Subordinate to
Senior Indebtedness............................... 26
Section 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc. .................. 26
Section 4.03. Subrogation................................................ 28
Section 4.04. Obligation of Company
Unconditional..................................... 29
Section 4.05. Payments on Securities Permitted........................... 29
Section 4.06. Payment Subject to Prior Payment
of Amounts Due to Holders of
Senior Indebtedness............................... 30
Section 4.07. Trustee as Holder of Senior
Indebtedness...................................... 30
Section 4.08. Trustee Entitled to Act to
Effectuate Subordination.......................... 31
Section 4.09. Provisions for Benefit of Holders
of Senior Indebtedness............................ 31
Section 4.10. Notice to Trustee to Effectuate
Subordination..................................... 32
Section 4.11. Trustee Has No Fiduciary Duty
to Holders of Senior
Indebtedness...................................... 32
Section 4.12. Modification, Extension, etc.
of Senior Indebtedness............................ 33
ARTICLE FIVE
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge
of Indenture...................................... 33
Section 5.02. Defeasance................................................. 34
Section 5.03. Application of Trust Money................................. 36
Section 5.04. Repayment of Moneys Held by
Paying Agent...................................... 36
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default.......................................... 36
Section 6.02. Acceleration of Maturity;
Rescission and Annulment.......................... 38
Section 6.03. Collection of Indebtedness and
Suits for Enforcement by Trustee.................. 39
Section 6.04. Trustee May File Proofs of Claim........................... 40
Section 6.05. Trustee May Enforce Claims
Without Possession of Securities.................. 41
Section 6.06. Application of Money Collected............................. 42
Section 6.07. Limitation on Suits........................................ 42
Section 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert....................... 43
Section 6.09. Restoration of Rights and
Remedies.......................................... 43
Section 6.10. Rights and Remedies Cumulative............................. 44
Section 6.11. Delay or Omission Not Waiver............................... 44
Section 6.12. Control by Holders......................................... 44
Section 6.13. Waiver of Past Defaults.................................... 44
Section 6.14. Undertaking for Costs...................................... 45
Section 6.15. Waiver of Stay or Extension Laws........................... 45
ARTICLE SEVEN
THE TRUSTEE
Section 7.01. Certain Duties and
Responsibilities.................................. 46
Section 7.02. Notice of Defaults......................................... 47
Section 7.03. Certain Rights of Trustee.................................. 48
Section 7.04. Not Responsible for Recitals
or Issuance of Securities......................... 49
Section 7.05. May Hold Securities........................................ 49
Section 7.06. Money Held in Trust........................................ 50
Section 7.07. Compensation and Reimbursement............................. 50
Section 7.08. Disqualification; Conflicting
Interests......................................... 50
Section 7.09. Corporate Trustee Required;
Eligibility....................................... 51
Section 7.10. Resignation and Removal;
Appointment of Successor.......................... 51
Section 7.11. Acceptance of Appointment by
Successor......................................... 53
Section 7.12. Merger, Conversion, Consolidation
or Succession to Business......................... 54
Section 7.13. Preferential Collection of
Claims Against Company............................ 55
(a) Segregation and Apportionment
of Certain Collections by
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Trustee, Certain Exceptions................. 55
(b) Certain Creditor Relationships
Excluded from Segregation
and Apportionment......................... 57
(c) Definitions of Certain Terms
Used in This Section...................... 58
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.01. Company to Furnish Trustee Names
and Addresses of Holders.......................... 59
Section 8.02. Preservation of Information;
Communications to Holders......................... 60
Section 8.03. Reports by Trustee......................................... 61
Section 8.04. Reports by Company......................................... 63
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Company May Consolidate, etc.
Only on Certain Terms............................. 64
Section 9.02. Successor Corporation Substituted.......................... 65
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Holders............................... 65
Section 10.02. Supplemental Indentures with
Consent of Holders............................... 67
Section 10.03. Execution of Supplemental
Indentures....................................... 68
Section 10.04. Effect of Supplemental Indentures......................... 68
Section 10.05. Conformity with Trust Indenture
Act.............................................. 68
Section 10.06. Reference in Securities to
Supplemental Indentures.......................... 68
ARTICLE ELEVEN
COVENANTS
Section 11.01. Payment of Principal, Premium
and Interest..................................... 69
Section 11.02. Maintenance of Office or Agency........................... 69
Section 11.03. Money for Securities Payments
to Be Held in Trust.............................. 70
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Section 11.04. Corporate Existence....................................... 71
Section 11.05. Payment of Taxes and Other
Claims........................................... 71
Section 11.06. Maintenance of Properties................................. 72
Section 11.07. Waiver of Certain Covenants............................... 72
Section 11.08. Statement by Officers as to
Default.......................................... 72
Section 11.09. Further Assurances........................................ 73
ARTICLE TWELVE
REDEMPTION OF SECURITIES
Section 12.01. Applicability of Article.................................. 73
Section 12.02. Election to Redeem; Notice
to Trustee....................................... 73
Section 12.03. Selection by Trustee of
Securities to Be Redeemed........................ 74
Section 12.04. Notice of Redemption...................................... 74
Section 12.05. Deposit of Redemption Price............................... 75
Section 12.06. Securities Payable on
Redemption Date.................................. 76
Section 12.07. Securities Redeemed in Part............................... 76
Section 12.08. Securities No Longer
Outstanding After Notice
to Trustee and Deposit
of Cash.......................................... 77
Section 12.09. Conversion Arrangement on
Call for Redemption.............................. 77
ARTICLE THIRTEEN
SINKING FUNDS
Section 13.01. Applicability of Article.................................. 78
Section 13.02. Satisfaction of Sinking Fund
Payments with Securities......................... 79
Section 13.03. Redemption of Securities for
Sinking Fund..................................... 79
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Exemption from Individual
Liability........................................ 80
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes of Meetings...................................... 80
Section 15.02. Call of Meetings by Trustee............................... 81
Section 15.03. Call of Meetings by Company or
Holders.......................................... 81
Section 15.04. Qualification for Voting.................................. 82
Section 15.05. Quorum; Adjourned Meetings................................ 82
Section 15.06. Regulations............................................... 83
Section 15.07. Voting Procedure.......................................... 84
Section 15.08. Written Consent in Lieu of
Meetings......................................... 84
Section 15.09. No Delay of Rights by Meeting............................. 84
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
Section 16.01. Applicability of Article.................................. 85
Section 16.02. Right of Holders to Convert
Securities....................................... 85
Section 16.03. Issuance of Shares of Capital
Stock on Conversion.............................. 86
Section 16.04. No Payment or Adjustment for
Interest or Dividends............................ 87
Section 16.05. Adjustment of Conversion Rate............................. 88
Section 16.06. No Fractional Shares
to be Issued..................................... 92
Section 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance....................... 93
Section 16.08. Notice to Holders of a Series
Prior to Taking Certain
Types of Action.................................. 94
Section 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.................................... 95
Section 16.10. Compliance With Governmental
Requirements..................................... 95
Section 16.11. Payment of Taxes Upon
Certificates for Shares
Issued Upon Conversion........................... 95
Section 16.12. Trustee's Duties With Respect
to Conversion Provisions......................... 96
ARTICLE SEVENTEEN
MISCELLANEOUS
Section 17.01. Counterparts.............................................. 96
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TESTIMONIUM............................................................... 97
SIGNATURES AND SEALS...................................................... 97
ACKNOWLEDGMENTS
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<PAGE>
INDENTURE, dated as of ___________________________, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 50
Locust Avenue, New Canaan, Connecticut 06840, to _________________________, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Affiliate" of any specified Person shall mean 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 Person means the possession of the power
to direct or cause the direction of the management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise; and the terms "controlled by" and "under common control
with" have meanings correlative to the foregoing.
"Authorized Newspaper" shall mean a newspaper of general circulation
in the Borough of Manhattan, The City of New York, and customarily published on
each Business Day, currently expected to be The Wall Street Journal (National
Edition). Where successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or different
newspapers meeting the foregoing requirements and in each case on any Business
Day.
"Bank Credit Agreement" means the Eighth Restated Credit Agreement
dated as of July 10, 1990 among Century/ Texas and Century Investors, Inc. as
borrowers, Citibank, N.A. as Agent, and the Lenders named therein, as the same
may be amended.
"Bank Notes" means the promissory notes issued pursuant to the Bank
Credit Agreement.
"Bank Obligations" means all obligations of the Company now or
hereafter existing under its Third Restated Pledge and Guaranty Agreement dated
July 10, 1990 (as the same may be amended, supplemented, modified or restated
from time to time and any renewals and extensions thereof) of the obligations of
Century/Texas under the Bank Credit Agreement and the Bank Notes, whether for
principal, interest (including, without limitation, interest, as provided in the
Bank Notes, accruing after the filing of a petition initiating any proceeding
referred to in Sections 6.01(5) and (6)), reimbursement of amounts drawn under
letters of credit
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issued pursuant to the Bank Credit Agreement, fees, expenses or otherwise.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Capital Stock" shall mean, when used to refer to "Capital Stock" into
which Securities of a particular series are convertible, stock of any class of
the Company into which Securities of such series are convertible in accordance
with their terms (as specified as contemplated by Section 3.01).
"Century/Texas" shall mean Century Communications Corp., a Texas
corporation, a wholly owned subsidiary of the Company.
"Closing Price," on any day when used with respect to any class of
Capital Stock, shall mean (i) if the stock is then listed or admitted to trading
on a national securities exchange in the United States, the last reported sale
price, regular way, for the stock as reported in the consolidated transaction or
other reporting system for securities listed or traded on such exchange, or (ii)
if the stock is listed on the National Association of Securities Dealers, Inc.
Automated Quotations System National Market System (the "NASDAQ National Market
System"), the last reported sale price, regular way, for the stock, as reported
on such list, or (iii) if the stock is not so admitted for trading on any
national securities exchange or the NASDAQ National Market System, the average
of the last reported closing bid and asked prices reported by the National
Association of Securities Dealers, Inc. Automated Quotations System as furnished
by any member in good standing of the National Association of Securities
Dealers, Inc. selected from time to time by the Company for that purpose or as
quoted by the National Quotation Bureau Incorporated. In the event that no such
quotation is available for any day, the Board of Directors shall be entitled to
determine the
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current market price on the basis of such quotations as it considers
appropriate.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
__________________ at which at any particular time its corporate trust business
shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
against fluctuations in currency values.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
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"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an instalment of interest on such Security.
"Interest Swap Obligations" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities
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theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or redemption
money or, as provided in Section 5.02 hereof, U.S. Government Obligations,
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or, except for purposes
of Section 5.01, set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities converted into Capital Stock in accordance with
Article Sixteen hereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, or
upon such determination as to the presence of a quorum, only Securities which
the Trustee knows to be so owned shall be
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so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any day and
for any purpose means the amount (including, without limitation, 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
such date and for such purpose (including, without limitation, in connection
with any sinking fund, upon any redemption at the option of the Company upon any
purchase or exchange at the option of the Company 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.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price," when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series of
Securities, the date (and each successive anniversary thereof) established by a
Board Resolution pursuant to Section 3.01 which shall be a date no more than ten
months from the date of the initial issuance of such series of Securities under
this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
any officer assigned to and working in the corporate trust department of the
Trustee, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his or her knowledge of and familiarity
with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" shall mean (a) the Bank Obligations; (b) the
principal of (and premium, if any) and interest on (i) all other indebtedness
for money borrowed by the Company, whether outstanding on the date of this
Indenture or hereafter created or incurred, (ii) all other indebtedness for
money borrowed by another Person in which the Company has an equity interest or
has the right to purchase an equity interest, and guaranteed in whole or in part
directly or indirectly by the Company (whether such guarantee is outstanding on
the date of this Indenture or hereafter created or incurred), or (iii) all
indebtedness constituting purchase money indebtedness for the payment of which
the Company is directly or contingently liable, whether outstanding on the date
of this Indenture or hereafter created or incurred; (c) any obligation of the
Company to purchase or guarantee indebtedness of, to supply funds to or to
invest in, another Person in which the Company has an equity interest or has the
right to purchase an equity interest (whether such obligation is outstanding
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on the date of this Indenture or is hereafter created or incurred); (d) any
obligation of the Company to any Person in respect of surety or similar bonds
issued by such Person in connection with entering into, renewing, extending or
maintaining any cable television franchise granted by a governmental authority
or any construction in respect of any cable television system by the Company or
any other Person in which the Company has an equity interest or has the right to
purchase an equity interest; (e) any obligation of the Company to compensate,
reimburse or indemnify an issuer with respect to any letter of credit issued at
the request of or for the account of the Company; (f) any obligation of the
Company under any Interest Swap Obligations or Currency Agreement (other than
any Interest Swap Obligations or Currency Agreement the payments with respect to
which correspond to payments on, or one of the events permitting the early
termination of which is expressly connected to, any indebtedness of the Company
which is expressed to be subordinate to other indebtedness of the Company or to
rank on a parity with the Securities); and (g) all renewals, extensions or of
any such obligations, indebtedness and guarantees; provided, however, that if,
by the terms of the instrument creating or evidencing any obligation,
indebtedness or guarantee referred to in clauses (a), (b), (c), (d), (e), (f)
and (g), above, it is expressly provided that such obligation, indebtedness or
guarantee is subordinate to all other indebtedness of the Company or is not
superior in right of payment to the Securities or to other indebtedness which is
pari passu with or subordinated to the Securities, such obligation, indebtedness
or guarantee shall not be included as Senior Indebtedness; and, provided,
further, that Senior Indebtedness shall not include the Securities and any other
obligation, indebtedness or guarantee that is created or evidenced by an
instrument the terms of which expressly provide that such obligation,
indebtedness or guarantee ranks pari passu with the Securities. As used in the
preceding sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other instrument or any
other written obligation to pay money (whether or not secured by any lien or
other security interest) issuer or assumed as all or a part of the consideration
for the acquisition of property, assets or securities whether by purchase,
merger, consolidation or otherwise.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the
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fixed date on which the principal of such Security or such instalment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified in Section
5.02.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitute a condition
precedent), if any, 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 (including any covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular
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application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or
representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless
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such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.07 and the record so proved
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same,
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may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company or the Trustee, as applicable, may set a date for the
purpose of determining the Holders of Securities entitled to consent, vote or
take any other action referred to in this Section 1.04, which date shall be not
less than 10 days nor more than 60 days prior to the taking of the consent, vote
or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of the Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office and, unless otherwise
herein expressly provided, any such document shall be deemed to be
sufficiently made, given, furnished or filed upon its receipt by a
Responsible Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in
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writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders and to the extent provided in Article Four the holders
of Senior Indebtedness, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the
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Security. If the form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.03 for the authentication and delivery of such
Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
The Trustee's certificate of authentication shall be in substantially
the form set forth in this Article.
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 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series designated therein issued
under the within-mentioned Indenture.
______________________________
as Trustee
By ___________________________
Authorized Signature
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other securities of the
series pursuant to Section 3.04, 3.05, 3.06, 10.06 or 12.07);
(3) the date or dates on which the principal (and premium, if any) of
the Securities of the series is payable or the method of determination
thereof;
(4) the rate or rates (which may be fixed or variable), or the method
of determination thereof, at which the Securities of the series shall bear
interest, if any, including the rate of interest applicable on overdue
payments of principal or interest, if different from the rate of interest
stated in the title of the Security, the date or dates from which such
interest shall accrue or the method of determination thereof, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Interest Payment Date;
(5) the Paying Agent or Paying Agents for the Securities of the series
if other than the Trustee;
(6) the Place of Payment of the Securities of the series if other than
the Corporate Trust Office of the Trustee;
(7) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
6.02;
(11) if the provisions of Section 5.02 of this Indenture are to apply
to the Securities of the series, a statement indicating the same;
(12) any deletions from or modifications of or additions to the Events
of Default set forth in Section 6.01 pertaining to the Securities of the
series;
(13) the form of the Securities of the series;
(14) the obligation, if any, of the Company to permit the conversion
of the Securities into Capital Stock and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion rate, the conversion period and any other provision in
addition to or in lieu of those set forth in this Indenture relative to
such obligation);
(15) any other terms of a particular series and any other provisions
expressing or referring to the terms and conditions upon which the
Securities of that series are to be issued, which terms and provisions are
not in conflict with the provisions of this Indenture or do not adversely
affect the rights of Holders of any other series of Securities then
Outstanding); provided, however, that the addition to or subtraction from
or variation of Articles Five, Six, Nine and Eleven (and Section 1.01
insofar as it relates to the definition of certain terms as used in such
Articles) with regard to the Securities of a particular series shall not be
deemed to constitute a conflict with the provisions of those Articles; and
(16) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Four. The Securities of all series shall
rank on a parity in right of payment.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon the documents specified in Section 314 of the Trust Indenture Act,
and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board Resolution,
certified by the Secretary or Assistant Secretary of the Company;
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(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state
(1) that the form and terms of such Securities have been established
by or pursuant to Board Resolutions, by a supplemental indenture or by both
such resolution or resolutions and such supplemental indenture in
conformity with the provisions of this Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles, and will be entitled to
the benefits of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
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reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.05. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
an equal ag-
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gregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 12.03 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange of any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
At the option of the Company, interest on the Securities of any series
that bear interest may be paid by mailing a check to the address of the Person
entitled
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thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
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(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be canceled by it
and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered promptly
shall be canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the
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Securities of each series shall be computed on the basis of a year of twelve
30-day months.
ARTICLE FOUR
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of Securities of any
series by his acceptance thereof, whether upon original issue or upon
registration of transfer or assignment, likewise covenants and agrees, that the
indebtedness evidenced by the Securities of such series, including the principal
thereof (and premium, if any) and interest thereon, shall be subordinated and
subject in right of payment, to the extent and in the manner set forth in this
Article, to the prior payment in full of all Senior Indebtedness, whether now
outstanding or hereafter incurred.
SECTION 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc.
Upon any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of the Company
or otherwise:
(a) all principal (and premium, if any) and interest due on all Senior
Indebtedness shall first be paid in full, or payment thereof provided for
in money or money's worth, before the Holders of the Securities of any
series or the Trustee on their behalf shall be entitled to retain any
assets so paid or distributed (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment,
junior to, or the payment of which is subordinated at least to the extent
provided in this Article to the payment of, all Senior Indebtedness which
may at the time be outstanding or to any securities issued in respect
thereof under any such plan of reorganization or readjustment) with respect
to principal (and premium, if any) and interest on the Securities of any
such series;
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(b) upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than
shares of stock of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, junior to, or the payment of which is
subordinated at least to the extent provided in this Article to the payment
of, all Senior Indebtedness which may at the time be outstanding or to any
securities issued in respect thereof under any such plan of reorganization
or readjustment), to which the Holders of Securities of any series or the
Trustee on behalf of such Holders would be entitled, except for the
provisions of this Article, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution directly to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by each such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness, before any payment or distribution
is made to the Holders of Securities of any series; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment,
junior to, or the payment of which is subordinated at least to the extent
provided in this Article to the payment of, all Senior Indebtedness which
may at the time be outstanding or to any securities issued in respect
thereof under any such plan of reorganization or readjustment), shall be
received by the Trustee, any Paying Agent or the Holders of Securities of
any series before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior Indebtedness
or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued (pro rata to each such holder as
aforesaid) for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving
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effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness.
(d) The consolidation or merger of the Company with or into another
corporation, or any consolidation or merger of any other corporation with
or into the Company, or the liquidation or dissolution of the Company
following the sale, transfer or lease of substantially all of the property
and assets of the Company to another corporation shall not be deemed a
dissolution, winding-up or total or partial liquidation or reorganization
of the Company or an assignment or other marshalling of the assets and
liabilities of the Company for purposes of this Section 4.02 so long as
such other corporation, as a part of any such consolidation, merger, sale,
conveyance or lease, shall comply with the conditions stated in Article
Nine.
SECTION 4.03. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders
of Securities of any series shall be subrogated pro rata (based on the
respective amounts paid over for the benefit of the holders of Senior
Indebtedness) with the Holders of Securities of each other series and any other
subordinated indebtedness of the Company which by its terms ranks on a parity in
right of payment with the Securities (the Securities and such other subordinated
indebtedness being in this Section referred to as "parity indebtedness") to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Securities of each
series shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities of any series or
the holders of other parity indebtedness, or the Trustee or the trustee with
respect to any parity indebtedness, would be entitled except for the provisions
of this Article shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities of any series
and the holders of other parity indebtedness, be deemed to be a payment by the
Company to or on account of the Securities, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of any series and
the holders of other parity indebtedness on the one hand and the holders of
Senior Indebtedness on the other hand.
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Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, any Paying Agent and the Holders shall be entitled
to rely upon any order or decree of a court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are
pending or upon a certificate of the liquidating trustee or agent or other
person making any payment or distribution to the Trustee, any Paying Agent or
the Holders of Securities of any series for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 4.04. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture, or
in the Securities of any series, is intended to or shall alter or impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders the principal of (and premium, if any)
and interest on the Securities, as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holders from exercising all remedies otherwise permitted by
applicable law upon an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company otherwise payable or
delivered to the Trustee or the Holders upon the exercise of any such remedy.
SECTION 4.05. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or
in the Securities of any series, shall affect the obligation of the Company to
make, or prevent the Company from making, at any time except (i) during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding referred to in Section 4.02, and (ii) during the continuance of any
default specified in Section 4.06, payments at any time of principal of (and
premium, if any) or interest on the Securities of any series or of amounts to be
available as a sinking fund or analogous obligation for the Securities of any
series.
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SECTION 4.06. Payment Subject to Prior Payment of Amounts
Due to Holders of Senior Indebtedness.
No direct or indirect payment by or on behalf of the Company on
account of the principal of (and premium, if any) or interest on Securities of
any series shall be made if, at the time of such payment, there exists a default
in the payment of all or any portion of principal of (and premium, if any) or
interest on any Senior Indebtedness (and the Trustee has received written notice
thereof), and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Senior
Indebtedness.
The restrictions in this Article on payments on account of the
principal of (and premium, if any) and interest on the Securities of any series
shall include, without limitation, payments of principal (and premium, if any)
upon mandatory or optional redemptions, redemptions through the operation of and
deposits for the sinking fund or analogous obligations and purchases of
Securities of any series by the Company; provided, however, that nothing in this
Section shall prevent (a) any payment being made in connection with a redemption
of Securities of any series if (i) notice of such redemption has been given
pursuant to Section 12.04 and (ii) prior to the time of the mailing of such
notice of redemption the Trustee shall not have received notice of any default
specified in the first paragraph of this Section with respect to any Senior
Indebtedness or notice to the effect that any such default will exist at the
date fixed for such redemption or as a result of such redemption; or (b) the
application by the Trustee or any Paying Agent of any amounts deposited, at
least three Business Days prior to the occurrence of any payment default or the
receipt of notice by the Trustee of any other default specified in the first
paragraph of this Section, with the Trustee or such Paying Agent in trust for
the purpose of paying a specified instalment or installments of interest on the
Securities of any series, to the payment of such instalment of interest.
SECTION 4.07. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.08 or elsewhere in this Indenture shall be construed to deprive the Trustee of
its rights as such holder.
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SECTION 4.08. Trustee Entitled to Act to
Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.09. Provisions for Benefit of Holders
of Senior Indebtedness.
The provisions of this Article constitute a continuing offer to all
persons who in reliance upon such provisions become holders of Senior
Indebtedness. Such provisions are made for the benefit of the holders of Senior
Indebtedness and such holders are hereby made obligees hereunder to the same
extent as if their names were written herein as such, and they or each of them
may proceed to enforce such provisions.
In furtherance of the foregoing, each holder of Senior Indebtedness
(i) is hereby irrevocably authorized and empowered but shall not be obligated to
demand, sue for, collect, receive and receipt for such holder's ratable share of
all payments and distributions in respect of the Securities which are required
to be paid or delivered to holders of Senior Indebtedness as provided herein,
and to file and prove all such claims and take all such other action in the name
of the Holders or otherwise, as such holder of Senior Indebtedness may determine
to be necessary or appropriate for the enforcement of the rights provided
herein, and (ii) may require the delivery to him by each Holder of such other
instruments confirming such authorization and such powers of attorneys, proofs
of claim, assignments of claim and other instruments, and the taking of all such
other action, as he may request in order to enable such holder of Senior
Indebtedness to enforce such holder's ratable share of all Securities and all
such payments and distributions in respect thereof.
No present or future holder of Senior Indebtedness shall be prejudiced
in any way in the rights of such holder to enforce subordination of the
Securities of all series by any act or failure to act on the part of the Company
or any such holder. Until all Senior Indebtedness has been paid in full, no
Holder of Securities of any series shall agree to, and the Company shall not
accept, any release, cancellation, discharge or forgiveness of any Securities of
such Holder.
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SECTION 4.10. Notice to Trustee to Effectuate
Subordination.
The Company shall give prompt written notice to the Trustee of any
dissolution or winding-up or total or partial liquidation or reorganization of
the Company within the meaning of Section 4.02, or of the existence of any
default specified in Section 4.06. Notwithstanding any of the provisions of this
Article or any other provision of this Indenture, 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 to or by the Trustee, or the taking of any
other action by the Trustee pursuant to this Article, unless and until the
Trustee shall have received written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any trustee therefor; and, prior
to the receipt of any such written notice the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that, (i) except
as otherwise provided in this Section or in Section 4.05 or 4.06, if prior to
three Business Days before the date upon which by the terms hereof any such
payment of the principal of (and premium, if any) or interest on any Security
shall be due and payable, the Trustee shall not have received the notice
provided for in this Section, then the Trustee and any Paying Agent shall have
full power and authority to receive such payment and to apply the same to the
purpose for which it was received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date; and (ii) if
prior to the time of the mailing of notice of redemption of any Securities
pursuant to Section 12.04 the Trustee shall not have received such notice, then,
anything contained in this Article to the contrary notwithstanding, the Trustee
shall have full power and authority to receive any payment and to apply the same
to the redemption of such Securities, and shall not be affected by any notice to
the contrary which may be received by it on or after such time of mailing. The
Trustee and any Paying Agent shall be entitled to rely conclusively on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness or a trustee on behalf of such holder to establish
that the notice provided for in this Section was given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders.
SECTION 4.11. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article, and no implied covenants or
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obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of the Senior Indebtedness. The Trustee shall
not be liable to any holder of Senior Indebtedness if the Trustee shall
mistakenly, but in good faith, pay over or transfer to Holders, the Company or
any other Person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article.
SECTION 4.12. Modification, Extension, etc.
of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of (and premium, if
any) and interest on the Securities of any series, at any time or from time to
time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument pursuant to which any Senior
Indebtedness is issued, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
or the Trustee.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.06 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 11.03) have been
delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.06),
for principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 5.03 and the last
paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Company shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S.
Government Obligations (as defined below) as will, or will together with the
income thereon without
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consideration of any reinvestment thereof, be sufficient to pay all sums due for
the principal of (and premium, if any) and interest, if any, on the Securities
of such series, as they shall become due from time to time, and shall pay all
costs, charges and expenses incurred or to be incurred by the Trustee in
relation thereto or in carrying out the provisions of this Indenture, this
Indenture shall cease to be of further effect with respect to Securities of such
series (except as to (i) the Company's obligations, as the case may be, with
respect to Securities of such series under Sections 3.05, 3.06 and 11.02, (ii)
rights of Holders to receive payments of the principal of (and premium, if any)
and interest, if any, on the Securities of such series as they shall become due
from time to time and other rights, duties and obligations of Holders as
beneficiaries hereof with respect to the amounts so deposited with the Trustee,
(iii) rights of conversion of any Security, the terms of which provide for
conversion (which shall continue in full force and effect pursuant to the terms
set forth in Article Sixteen to the extent provided for in such terms), and (iv)
the rights, obligations and immunities of the Trustee hereunder (for which
purposes the Securities of such series shall be deemed outstanding)), and the
Trustee, on the written request of the Company, accompanied by the Officer's
Certificate and Opinion of Counsel required by Section 1.02, shall execute and
deliver to the Company such instruments as shall be requisite to evidence the
satisfaction thereof with respect to Securities of such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
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SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03, all
money deposited with the Trustee pursuant to Sections 5.01 and 5.02 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for two years and eleven
months after the date upon which the principal of or interest on such Securities
shall have become due and payable, shall be repaid to the Company by the Trustee
or any such other Paying Agent and such holders shall thereafter be entitled to
look to the Company only as general creditors for payment thereof (unless
otherwise provided by law); provided, however, that, before the Trustee or any
such other Paying Agent is required to make any such payment to the Company, the
Trustee may, upon the request of the Company and at the expense of the Company,
cause to be published once in an Authorized Newspaper a notice that such money
remains unclaimed and that, after the date set forth in said notice, the balance
of such money then unclaimed will be returned to the Company.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days (whether or not such default shall be by reason of the
operation of the provisions of Article Four); or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity (whether or not such
default shall be by reason of the operation of the provisions of Article
Four); or
(3) default in the deposit of any sinking fund payment or analogous
obligation, when and as due by the terms of any Security of that series
(whether or not such default shall be by reason of the operation of the
provisions of Article Four); or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or any Security of that series (other than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
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(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable, anything in this Indenture or in any of the
Securities of such series to the contrary notwithstanding; provided, however,
that payment of principal of (and premium, if any) and interest on the
Securities of such series shall remain subordinated to the extent provided in
Article Four.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
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Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days,
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation
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when the same becomes due pursuant to the terms of any Security,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents and take such other
actions, including participating as a member, voting or otherwise, of any
official committee of creditors appointed in such matter, as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding except as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person or to
participate as a member, voting or otherwise, on any committee of creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 6.06. Application of Money Collected.
Subject to the provisions of Article Four, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60- day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment (subject to the provisions of Article Four) of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), the right, which is also absolute and
unconditional, to require the conversion of his Securities pursuant to Article
Sixteen hereof if the terms of such Securities provide for convertibility
pursuant to Section 3.01 and the right to institute suit for the enforcement of
any such payment or of such right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders of the Securities of such series not
taking part in such direction, or to the Holders of the Securities of any
other series, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may
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on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
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 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby ex-
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pressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture but need not verify the
accuracy of the contents thereof or whether procedures specified by or
pursuant to the provisions of this Indenture have been followed in the
preparation thereof.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise 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.
(c) 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
(1) this subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 6.12, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund or analogous obligation instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the
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term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
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inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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 and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer assigned to and working in the
Trustee's corporate trust department has actual knowledge thereof or unless
written notice thereof is received by the Trustee at the Corporate Trust
Office and such notice references the Securities generally, the Company or
this Indenture. Whenever reference is made in this Indenture to an Event of
Default, such reference shall, insofar as determining any liability on the
part of the Trustee is concerned, be construed to refer only to an Event of
Default of which the Trustee is deemed to have knowledge in accordance with
this paragraph; and
(i) the permissive right of the Trustee to take or refrain from taking
any actions enumerated in this Indenture shall not be construed as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 7.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 7.08 and 7.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
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SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder.
SECTION 7.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses,
including reasonable attorneys' fees, of defending itself against any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of particular Securities.
SECTION 7.08. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act during
the period of time provided for therein. In determining whether the Trustee has
a conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded this
Indenture with respect to Securities of any particular
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series of Securities other than that series. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $5,000,000, subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in ____________________________. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 7.11 shall
not have been delivered to the Trustee within 10 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Company
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or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
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all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event to all Holders of Securities of such series as
their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3)
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shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
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as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
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(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
three-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three-month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting
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thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
whether such distribution is made in cash, securities or other property, but
shall not include any such distribution with respect to the secured portion, if
any, of such claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction (i) to
apportion among the Trustee, the Holders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and proceeds thereof, or (ii) in lieu of
such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee and the Holders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such three-month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
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(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section and (iii) under
which a default exists at the time of
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the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities at the
time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, either (i) not later than June 1 and November 1 in
each year in the case of Original Issue Discount Securities of any series
which by their terms do not bear interest prior to Maturity, or (ii) not
more than 15 days after each Regular Record Date in the case of Securities
of any other series, a list, each in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
of such series as of the preceding June 1 or
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November 1 or as of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar
with respect to Securities of any series, no such lists need be furnished.
SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 8.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein 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 with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder
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whose name and address appear in the information preserved at the time by the
Trustee in accordance with Section 8.02(a) 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 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 Holders 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) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held responsible by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 8.02(b), 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 Section 8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring subsequent
to the initial issuance of Securities hereunder and within 60 days after each
Reporting Date occurring thereafter, the Trustee shall transmit by mail to the
Holders, as hereinafter provided, a brief report (but in no event shall such
report be transmitted more than twelve months after the date of the initial
issuance of the Securities in the case of the first such report and at stated
intervals of more than twelve months in the case of each subsequent report)
dated as of such Reporting Date with respect to any of the following events
which may have occurred during the twelve months preceding the date of such
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report (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08, or in lieu thereof, if to the best of
its knowledge it has continued to be eligible and qualified under said
Sections, a written statement to such effect;
(2) the creation of or any material change to a relationship specified
in Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the Securities
Outstanding for which it is Trustee on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 7.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as hereinafter
provided, a brief report with
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respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding for which it is Trustee at such
time, such report to be transmitted within 90 days after such time.
(c) All reports required by this Section 8.03, and all other reports
or notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section 8.03, shall be
transmitted by mail: (i) to all registered Holders, as their names and addresses
appear in the Security Register; (ii) to such Holders of such series as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by
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the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and
the
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performance of every covenant of this Indenture on the part of the Company
to be performed or observed; and
(2) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 9.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or lease
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities pursuant to Article Nine and to provide for
the adjustment of conversion rights pursuant to Section 16.07; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating
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that such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Securities, stating
that such Events of Default are expressly being included solely to be
applicable to such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to provide for uncertificated
Securities (so long as any "registration-required obligation" within the
meaning of section 163(f)(2) of the Internal Revenue Code of 1986, as
amended, is in registered form for purposes of such section); or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
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SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or alter or impair the right to convert any
Security at the rate and upon the terms provided for in this Indenture or
the form of such Security, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
6.02, or adversely affect any right of repayment at the option of the
Holder of any Security, or reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous obligation, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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Notwithstanding the foregoing, no consent of the Holders shall be necessary to
permit the execution of supplemental indentures pursuant to Section 16.07. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee in its sole discretion may, but shall not be obligated
to, enter into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
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to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of
Securities of each series that it will duly and punctually pay the principal of
(and premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of the Securities of that series and this Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where the Securities may be presented for payment
or, for Securities of each series that is convertible, for conversion. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to
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the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 11.03. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Company (or by any
other obligor on the Securities of that series) to make any payment of the
principal of (and premium, if any) or interest, if any, on the Securities of
such series when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and 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
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the Trustee for
any series of Securities, 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, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on the Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request subject to applicable
abandoned property and escheat law, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two consecutive weeks (in each case on any day of
the week) in an Authorized Newspaper notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or discharge
or cause to be paid or discharged, before the same shall become delinquent, (1)
all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or
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property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of its properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business and not disadvantageous in any material respect to the
Holders of the Securities of any series.
SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 11.04, 11.05 and 11.06, with
respect to the Securities of any series, if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each fiscal year,
commencing with the first fiscal year following the issuance of Securities of
any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of such Securities to
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the end of the fiscal year in which such Securities were issued, in the case of
the first such certificate, and covering the preceding fiscal year in the case
of each subsequent certificate, and stating whether or not, to the knowledge of
the signer, the Company has complied with all conditions and covenants on its
part contained in this Indenture, and, if the signer has obtained knowledge of
any default by the Company in the performance, observance or fulfillment of any
such condition or covenant, specifying each such default and the nature thereof.
For the purpose of this Section 11.08, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee, the
Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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SECTION 12.03. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided, however, that
Securities of such series registered in the name of the Company shall be
excluded from any such selection for redemption until all Securities of such
series not so registered shall have been previously selected for redemption. For
the purposes of such selection in case of redemption of less than all the
Securities of any series, the Trustee and the Company shall have the option to
treat as Outstanding Securities any Securities of such series which are
surrendered for conversion after the fifteenth day immediately preceding the
mailing of notice of such redemption, and need not treat as Outstanding
Securities any Securities authenticated and delivered during such period in
exchange for the unconverted portion of any Securities converted in part during
such period.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
Notice of redemption shall be given not less than 10 nor more than 60
days prior to the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) if applicable, the current conversion price or rate,
(6) if applicable, that the right of the Holder to convert Securities
called for redemption shall terminate at the close of business on the
Redemption Date (or such other day as may be specified as contemplated by
Section 3.01 for Securities of any series),
(7) if applicable, that Holders who want to convert Securities called
for redemption must satisfy the requirements for conversion contained in
such Securities,
(8) that, subject to Section 16.04, interest, if any, accrued to the
date fixed for redemption will be paid as specified in said notice,
(9) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(10) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. No such notice shall be
given at any time when the Company or the Trustee shall have received notice
that there exists a default specified in the first paragraph of Section 4.06 or
that such a default will exist at the date fixed for such redemption or as a
result of such redemption.
SECTION 12.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of
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money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities of such series
called for redemption on such date which have been converted prior to the date
of such deposit.
SECTION 12.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. The right to convert
such Securities or portions thereof, if the terms of such Securities provide for
conversion pursuant to Section 3.01, shall terminate at the close of business on
the Redemption Date or such other day as may be specified as contemplated by
Section 3.01 for Securities of such series. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, subject to Section 16.04, installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Security called for redemption pursuant to Section 12.01 is
converted pursuant to Article Sixteen, any monies deposited with the Trustee for
the purpose of paying or redeeming any such Security shall be promptly paid to
the Company.
SECTION 12.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate
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and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the security so surrendered.
Securities in denominations larger than $1,000 may be redeemed in part, but only
in whole multiples of $1,000.
SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any Securities of any series or portions thereof
called for redemption in whole or in part cash or other form of payment if
permitted by the terms of such Securities (which amount shall be immediately due
and payable to the Holders of such Securities or portions thereof), in the
amount necessary so to redeem all such Securities or portions thereof on the
Redemption Date and provision satisfactory to the Trustee shall have been made
for the giving of notice of such redemption, such Securities or portions
thereof, shall thereupon, for all purposes of this Indenture, be deemed to be no
longer Outstanding, and the Holders thereof shall be entitled to no rights
thereunder or hereunder, except the right to receive payment of the Redemption
Price, together with interest accrued to the Redemption Date, on or after the
Redemption Date of such Securities or portions thereof and the right to convert
such Securities or portions thereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01 at or prior to the close of business on
the Redemption Date.
SECTION 12.09. Conversion Arrangement
on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee or the Paying Agent in trust
for the Holders, on or before 10:00 a.m. New York time on the Redemption Date,
an amount no less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent
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such amount is so paid by such purchasers. If such an agreement is entered into,
any Securities not duly surrendered for conversion by the Holders thereof may,
at the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article Sixteen) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the last day
on which Securities of such series called for redemption may be converted in
accordance with this Indenture and the terms of such Securities, subject to
payment of the above amount aforesaid. The Trustee or the Paying Agent shall
hold and pay to the Holders whose Securities are selected for redemption any
such amount paid to it in the same manner as it would moneys deposited with it
by the Company for the redemption of Securities. Without the Trustee's and the
Paying Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Securities shall increase
or otherwise affect any of the powers, duties, responsibilities or obligations
of the Trustee or the Paying Agent as set forth in this Indenture, and the
Company agrees to indemnify the Trustee and the Paying Agent from, and hold them
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Company and such purchasers, including the costs and expenses
incurred by the Trustee and the Paying Agent in the defense of any claim or
liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to
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reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited or
converted pursuant to the terms of such Securities. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers or
directors, as such, of the Company or of any successor corporation, or any of
them, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and all
such personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issuance
of the Securities.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be called
at any time and from time to time pursuant to the provisions of this Article for
any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by the
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Holders of Securities pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified percentage in aggregate principal amount of
the Securities of all or any series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 15.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of Securities of
all or any series to take any action specified in Section 15.01, to be held at
such time and at such place in __________________________, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of all or any
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given to all Holders
of Securities of each series that may be affected by the action proposed to be
taken at such meeting by publication at least twice in an Authorized Newspaper
prior to the date fixed for the meeting, the first publication to be not less
than 20 nor more than 180 days prior to the date fixed for the meeting, and the
last publication to be not more than five days prior to the date fixed for the
meeting, or such notice may be given to Holders by mailing the same by first
class mail, postage prepaid, to the Holders of Securities at the time
Outstanding, at their addresses as they shall appear in the Security Register,
not less than 20 nor more than 60 days prior to the date fixed for the meeting.
Failure to receive such notice or any defect therein shall in no case affect the
validity of any action taken at such meeting. Any meeting of Holders of
Securities of all or any series shall be valid without notice if the Holders of
all such Securities Outstanding, the Company and the Trustee are present in
person or by proxy or shall have waived notice thereof before or after the
meeting.
SECTION 15.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the Holders
of at least 10% in aggregate principal amount of the Securities then Outstanding
of each series that may be affected by the action proposed to be taken at
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the meeting shall have requested the Trustee to call a meeting of Holders of
Securities of all series that may be so affected to take any action authorized
in Section 15.01 by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed or made the first publication of the notice of such meeting within 30
days after receipt of such request, then the Company or the Holders in the
amount above specified may determine the time and the place in the
__________________________________________ for such meeting and may call such
meeting by mailing or publishing notice thereof as provided in Section 15.02.
SECTION 15.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be
a Holder of one or more Securities of a series affected by the action proposed
to be taken, or (b) be a Person appointed by an instrument in writing as proxy
by the Holder of one or more such Securities. The right of Holders to have their
votes counted shall be subject to the proviso in the definition of "Outstanding"
in Section 1.01. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
SECTION 15.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the
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case of mailing, such notice may be mailed not less than five days prior to such
date.
Any Holder of a Security who has executed an instrument in writing
complying with the provisions of Section 1.04 shall be deemed to be present for
the purposes of determining a quorum and be deemed to have voted; provided,
however, that such Holder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all Holders of such series of Securities whether or not present or
represented at the meeting.
SECTION 15.06. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.03, in which case
the Company or the Holders of Securities calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to vote
at such meeting, or proxy therefor, shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the
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provisions of Section 15.02 or 15.03 at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
SECTION 15.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballot on which shall be subscribed the signatures of the Holders
of Securities entitled to vote at such meeting, or proxies therefor, and on
which shall be inscribed an identifying number or numbers or to which shall be
attached a list of identifying numbers of the Securities so held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders of Securities shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed or published as provided in Section 15.02 and, if applicable,
Section 15.05. The record shall be signed and verified by the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the requisite
percentage in aggregate principal amount of Securities of any series herein
provided, entitled to vote at any such meeting, evidenced as provided in Section
1.04 and filed with the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter provided for in
this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
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make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
ARTICLE SIXTEEN
CONVERSION OF DEBENTURES
SECTION 16.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock at
the option of the Holder shall be convertible in accordance with their terms and
(unless otherwise specified as contemplated by Section 3.01 for Securities of
any series) in accordance with this Article. Each reference in this Article
Sixteen to "a Security" or "the Securities" refers to the Securities of the
particular series that is convertible into Capital Stock. If more than one
series of Securities with conversion privileges are outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
SECTION 16.02. Right of Holders to
Convert Securities.
Subject to and upon compliance with the terms of the Securities and
the provisions of Section 12.09 and this Article Sixteen, at the option of the
Holder thereof, any Security of any series of any authorized denomination, or
any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date except that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such right shall terminate upon
receipt of written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the Capital
Stock into which such Security is convertible as specified in such Security, at
the conversion rate for each $1,000 principal amount of Securities in effect on
the conversion date (such conversion rate reflecting the initial conversion rate
specified in such Security or, in case an adjustment) in the conversion rate has
taken place pursuant to the provisions of Section 16.05, then at the applicable
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conversion rate as so adjusted), upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 11.02, accompanied by a written notice
of election to convert as provided in Section 16.03 and, if so required by the
Company and the Trustee, by a written instrument or instruments of transfer in
form satisfactory to the Company and the Trustee duly executed by the registered
Holder or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 3.09.
The initial conversion rate in respect of a series of Securities shall
be as specified in the Securities of such series. The conversion rate will be
subject to adjustment on the terms set forth in Section 16.05 or such other or
different terms, if any, as may be specified by Section 3.01 for Securities of
such series. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of it.
SECTION 16.03. Issuance of Shares of
Capital Stock on Conversion.
As promptly as practicable after the surrender, as herein provided, of
any Security or Securities for conversion, the Company shall deliver or cause to
be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable shares of Capital Stock into which such Security or
Securities may be converted in accordance with the terms thereof and the
provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the
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Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the person or persons entitled to receive
the shares of Capital Stock upon conversion of such Security or Securities shall
be treated for all purposes as having become the record holder or holders of
such shares of Capital Stock at such time and such conversion shall be at the
conversion rate in effect at such time. In the case of any Security of any
series which is converted in part only, upon such conversion, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such series of
authorized denomination in aggregate principal amount equal to the unconverted
portion of such Security.
If the last day on which a Security may be converted is not a Business
Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for shares of
Capital Stock upon conversion while its stock transfer books are closed for a
meeting of shareholders or for the payment of dividends or for any other
purpose, but certificates for shares of Capital Stock shall be delivered as soon
as the stock transfer books shall again be opened.
SECTION 16.04. No Payment or Adjustment
for Interest or Dividends.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date for payment of defaulted interest) next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such Interest Payment Date;
provided, however, that if the Company shall default in the payment of said
interest, such funds shall be returned to the payer thereof. Payment of interest
shall be made, as of such Interest Payment Date or such date, as the case may
be, to the Holder of record as of such Regular, or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or
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adjustment for interest or dividends is to be made upon conversion.
Notwithstanding the foregoing, upon conversion of any Original Issue Discount
Security, the fixed number of shares of Capital Stock into which such Security
is convertible delivered by the Company to the Holder thereof shall be applied,
first, to pay the accrued original issue discount attributable to the period
from the date of issuance to the date of conversion of such Security, and,
second, to pay the balance of the principal amount of such Security.
SECTION 16.05. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution in the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares of the class of Capital Stock into which Securities of such series
are convertible (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the Holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the issuance of
rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital
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Stock, having a conversion price per share, after adding thereto the exercise
price, computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities, per share
of such class of Capital Stock so issuable) less than the current market price
per share of such class of Capital Stock (as defined in subsection (d) below) on
the date on which such issuance was declared or otherwise announced by the
Company (the "Determination Date"), the number of shares of such class of
Capital Stock into which each $1,000 principal amount of Securities shall be
convertible after such record date shall be determined by multiplying the number
of shares of such class of Capital Stock into which such principal amount of
Securities was convertible immediately prior to such record date by a fraction,
of which the numerator shall be the number of shares of such class of Capital
Stock outstanding on the Determination Date plus the number of additional shares
of such class of Capital Stock offered for subscription or purchase (or in the
case of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Company 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 to the extent that shares of such
class of Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration of such
rights or warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the expiration of
the conversion right of such securities) the conversion rate shall be readjusted
to the conversion rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants (or securities convertible into
shares) been made upon the basis of delivery of only the number of shares
actually delivered. In the event that such rights or
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warrants are not so issued, the conversion rate shall again be adjusted to be
the conversion rate which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the class of Capital Stock into which Securities
of such series are convertible (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
corporation) of evidences of its indebtedness or assets (excluding any cash
dividends paid from retained earnings and dividends payable in Capital Stock for
which adjustment is made pursuant to subsection (a) above) or subscription
rights or warrants (excluding subscription rights or warrants to purchase the
class of Capital Stock into which Securities of such series are convertible),
the number of shares of such class of Capital Stock into which each $1,000
principal amount of Securities of such series shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the fair market value of the assets of the Company, after
deducting therefrom all liabilities of the Company and all preferences
(including accrued by unpaid dividends) in respect of classes of Capital Stock
having a preference with respect to the assets of the Company over such class of
Capital Stock (all as determined by the Board of Directors, whose determination
shall be conclusive, and described in a certificate signed by the Chairmen of
the Board, the President, any Vice President, the Treasurer or the Controller of
the Company, filed with the Trustee and each conversion agent) on such record
date, and of which the denominator shall be such fair market value after
deducting therefrom such liabilities and preferences, less the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive, and described in a statement filed with the Trustee and each
conversion agent) of the assets or evidences of indebtedness, so distributed or
of such subscription rights or warrants applicable, so distributed. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the conversion rate shall
again be adjusted to the conversion rate which would then be in effect if such
record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above and
Section 16.06, the current market price per share of the Capital Stock on any
date as of which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business Days commencing 45 Business Days
before such date.
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(e) No adjustment in the conversion rate shall be required unless such
adjustment would require a cumulative increase or decrease of at least 1% in
such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided, further, that
adjustments shall be required and made in accordance with the provisions of this
Article Sixteen (other than this subsection (e)) not later than such time as may
be required in order to preserve the tax-free nature of a distribution for
United States income tax purposes to the Holders of Securities or the class of
Capital Stock into which such Securities are convertible. All calculations under
this Article Sixteen shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be. Anything in this Section 16.05 to
the contrary notwithstanding, the Company shall be entitled to make such
adjustments in the conversion rate, in addition to those required by this
Section 16.05, as it in its discretion shall determine to be advisable in order
that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its shareholders shall
not be taxable for United States income tax purposes.
(f) Whenever the conversion rate is adjusted, as herein provided, the
Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Securities of such series
pursuant to Section 11.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Holder of such
series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders of such
series, as their names and addresses appear upon the Security Register.
(g) In the event that at any time, as a result of shares of any other
class of Capital Stock becoming issuable in exchange or substitution for or in
lieu of shares of the class of Capital Stock into which such Securities are
convertible or as a result of an adjustment made pursuant to
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subsection (a) above, the Holder of any Security of such series thereafter
surrendered for conversion shall become entitled to receive any shares of the
Company other than shares of the class of Capital Stock into which the
Securities of such series are convertible, thereafter the number of such other
shares so receivable upon conversion of any Security 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 class of Capital Stock into
which the Securities of such series are convertible contained in subsections (a)
to (f), inclusive, above, and the provisions of this Article Sixteen with
respect to the class of Capital Stock into which the Securities of such series
are convertible shall apply on like terms to any such other shares.
(h) The conversion rate with respect to any Original Issue Discount
Securities, the terms of which provide for convertibility, shall not be adjusted
during the term of such Original Issue Discount Securities for accrued original
issue discount.
(i) In the event that the Securities of any series are convertible
into more than one class of Capital Stock, the provisions of this Section 16.05
shall apply separately to events affecting each such class.
SECTION 16.06. No Fractional Shares
to be Issued.
No fractional shares of Capital Stock shall be issued upon conversions
of Securities. If more than one Security of any series shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Securities of such series (or specified
portions thereof to the extent permitted hereby) so surrendered. Instead of a
fraction of a share of Capital Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction of a share in an
amount equal to the same fractional interest of the current market price (as
defined in Section 16.05) per share of Capital Stock on the Business Day next
preceding the day of conversion.
SECTION 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other
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than a consolidation or merger in which the Company is the continuing
corporation), or in the case of any sale or transfer of all or substantially all
of the assets of the Company, the corporation formed by such consolidation or
the corporation into which the Company shall have been merged or the corporation
which shall have acquired such assets, as the case may be, shall execute and
deliver to the Trustee, a supplemental indenture, subject to the provisions of
Articles Nine and Ten as they relate to supplemental indentures, providing that
the Holder of each Security then Outstanding of a series which was convertible
into Capital Stock shall have the right thereafter to convert such Security into
the kind and amount of shares of stock and other securities and property,
including cash, receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Capital Stock of the Company into which such
Securities might have been converted immediately prior to such consolidation,
merger, sale or transfer. Such supplemental indenture shall conform to the
provisions of the Trust Indenture Act of 1939 as then in effect and shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Sixteen. Neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Holders upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 7.01, may accept
as conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 16.07 shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.08. Notice to Holders of a
Series Prior to Taking
Certain Types of Action.
With respect to the Securities of any series, in case:
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(a) the Company shall authorize the issuance to all holders of the
class of Capital Stock into which Securities of such series are convertible
of rights or warrants to subscribe for or purchase shares of its Capital
Stock or of any other right;
(b) the Company shall authorize the distribution to all holders of the
class of Capital Stock into which Securities of such series are convertible
of evidences of its indebtedness or assets (except for the exclusions with
respect to certain dividends set forth in Section 16.05(c));
(c) of any subdivision, combination or reclassification of the class
of Capital Stock into which Securities of such series are convertible or of
any consolidation or merger to which the Company is a party and for which
approval by the shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 11.02, and shall cause to be mailed to the Holders of such
series, at their last addresses as they shall appear upon the Security Register,
at least ten days prior to the applicable record date hereinafter specified, a
notice stating (i) the date as of which the holders of such class of Capital
Stock to be entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of such class of Capital
Stock shall be entitled to exchange their Capital Stock of such class for
securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 16.08 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
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SECTION 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 16.10. Compliance with Governmental Requirements.
The Company covenants that if any shares of Capital Stock required to
be reserved for purposes of conversion of Securities hereunder require
registration or listing with or approval of any governmental authority under any
Federal or State law, pursuant to the Securities Act of 1933, as amended, or the
Securities Exchange Act, or any national or regional securities exchange on
which such Capital Stock is listed at the time of delivery of any shares of such
Capital Stock, before such shares may be issued upon conversion, the Company
will use its best efforts to cause such shares to be duly registered, listed or
approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion.
The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such name as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificates unless or until the person
or persons
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requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
SECTION 16.12. Trustee's Duties With Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be under
any duty or responsibility to any Holder to determine whether any facts exist
which may require any adjustment of the conversion rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversions, and the Trustee, subject to the provisions of
Section 7.01, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article Sixteen.
ARTICLE SEVENTEEN
MISCELLANEOUS
SECTION 17.01. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
______________________________ hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
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Attest: CENTURY COMMUNICATIONS CORP.
__________________________ By____________________________
Secretary
Attest: _____________________________,
as Trustee
___________________________ By____________________________
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , , before me personally came
, to me known, who, being by me duly sworn, did depose and
say that he is of CENTURY COMMUNICATIONS
CORP., one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
----------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , , before me
personally came , to me known, who, being by me duly sworn, did
depose and say that he is of ,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
----------------------------
Notary Public
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of
and
Trust Indenture Act of 1939, as amended
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ----------
<S> <C>
310(a)(1)..................................................... 7.09
(a)(2)..................................................... 7.09
(a)(3)..................................................... Not applicable
(a)(4)..................................................... Not applicable
(b)........................................................ 7.08, 7.10
311(a)........................................................ 7.13(a)
(b)........................................................ 7.13(b)
312(a)........................................................ 8.01, 8.02(a)
(b)........................................................ 8.02(b)
(c)........................................................ 8.02(c)
313(a)........................................................ 8.03(a)
(b)(1)..................................................... Not applicable
(b)(2)..................................................... 8.03(b)
(c)........................................................ 8.03(c)
(d)........................................................ 8.03(c)
314(a)........................................................ 8.04
(a)(4)................................................... 11.08
(b)........................................................ Not applicable
(c)(1)..................................................... 1.02
(c)(2)..................................................... 1.02
(c)(3)..................................................... Not applicable
(d)........................................................ Not applicable
(e)........................................................ 1.02
315(a)........................................................ 7.01(a)
(b)........................................................ 7.02,
8.03(a)(6)
(c)........................................................ 7.01(b)
(d)(1)..................................................... 7.01(a)
(d)(2)..................................................... 7.01(c)
(d)(3)..................................................... 7.01(c)
(e)........................................................ 6.14
316(a)(1)(A).................................................. 6.12
(a)(1)(B).................................................. 6.13
(a)(2)..................................................... Not applicable
(b)........................................................ 6.08
317(a)(1)..................................................... 6.03
(a)(2)..................................................... 6.04
(b)........................................................ 11.03
318(a)........................................................ 1.07
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<PAGE>
Exhibit 4.3
FORM OF SUBORDINATED INDENTURE
================================================================================
CENTURY COMMUNICATIONS CORP.
and
-----------------------------------,
Trustee
-------------
INDENTURE
Dated as of ___________,
-------------
Subordinated Debt Securities
================================================================================
<PAGE>
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TABLE OF CONTENTS
<TABLE>
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PARTIES................................................................... 1
RECITALS OF THE COMPANY................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.01. Definitions................................................ 1
Act........................................................ 2
Affiliate.................................................. 2
Authorized Newspaper....................................... 2
Bank Credit Agreement...................................... 2
Bank Notes................................................. 2
Bank Obligations........................................... 2
Board of Directors......................................... 3
Board Resolution........................................... 3
Business Day............................................... 3
Capital Stock.............................................. 3
Century/Texas.............................................. 3
Closing Price.............................................. 3
Commission................................................. 4
Company.................................................... 4
Company Request; Company Order............................. 4
Corporate Trust Office..................................... 4
corporation................................................ 4
Currency Agreement......................................... 4
Defaulted Interest......................................... 4
Event of Default........................................... 4
GAAP....................................................... 4
Holder..................................................... 5
Indenture.................................................. 5
interest................................................... 5
Interest Payment Date...................................... 5
Interest Swap Obligations.................................. 5
Maturity................................................... 5
New York Presenting Agent.................................. 5
Officers' Certificate...................................... 5
Opinion of Counsel......................................... 5
Original Issue Discount Security........................... 5
Outstanding................................................ 6
Paying Agent............................................... 7
Person..................................................... 7
Place of Payment........................................... 7
Predecessor Security....................................... 7
principal.................................................. 7
principal amount........................................... 8
</TABLE>
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Redemption Date............................................ 8
Redemption Price........................................... 8
Regular Record Date........................................ 8
Reporting Date............................................. 8
Responsible Officer........................................ 8
Securities................................................. 8
Security Register and Security
Registrar................................................ 8
Senior Indebtedness........................................ 8
Special Record Date........................................ 9
Stated Maturity............................................ 10
Subsidiary................................................. 10
Trustee.................................................... 10
Trust Indenture Act........................................ 10
U.S. Government Obligations................................ 10
Vice President............................................. 10
Section 1.02. Compliance Certificates and
Opinions................................................. 10
Section 1.03. Form of Documents Delivered
to Trustee............................................... 11
Section 1.04. Acts of Holders............................................ 12
Section 1.05. Notices, etc. to Trustee
and Company.............................................. 13
Section 1.06. Notice to Holders; Waiver.................................. 14
Section 1.07. Conflict with Trust Indenture
Act...................................................... 14
Section 1.08. Effect of Headings and Table
of Contents.............................................. 14
Section 1.09. Successors and Assigns..................................... 14
Section 1.10. Separability Clause........................................ 14
Section 1.11. Benefits of Indenture...................................... 15
Section 1.12. Governing Law.............................................. 15
Section 1.13. Legal Holidays............................................. 15
ARTICLE II
SECURITY FORMS
Section 2.01. Forms Generally............................................ 15
Section 2.02. Form of Trustee's Certificate
of Authentication........................................ 16
ARTICLE III
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable
in Series................................................ 16
Section 3.02. Denominations.............................................. 19
</TABLE>
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Section 3.03. Execution, Authentication,
Delivery and Dating...................................... 19
Section 3.04. Temporary Securities....................................... 21
Section 3.05. Registration, Registration of
Transfer and Exchange.................................... 21
Section 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.................................... 23
Section 3.07. Payment of Interest; Interest
Rights Preserved......................................... 24
Section 3.08. Persons Deemed Owners...................................... 25
Section 3.09. Cancellation............................................... 26
Section 3.10. Computation of Interest.................................... 26
ARTICLE IV
SUBORDINATION OF SECURITIES
Section 4.01. Securities Subordinate to
Senior Indebtedness...................................... 26
Section 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc........................... 26
Section 4.03. Subrogation................................................ 29
Section 4.04. Obligation of Company
Unconditional............................................ 30
Section 4.05. Payments on Securities Permitted........................... 30
Section 4.06. Payment Subject to Prior Payment
of Amounts Due to Holders of
Senior Indebtedness...................................... 30
Section 4.07. Trustee as Holder of Senior
Indebtedness............................................. 31
Section 4.08. Trustee Entitled to Act to
Effectuate Subordination................................. 31
Section 4.09. Provisions for Benefit of Holders
of Senior Indebtedness................................... 31
Section 4.10. Notice to Trustee to Effectuate
Subordination............................................ 32
Section 4.11. Trustee Has No Fiduciary Duty
to Holders of Senior
Indebtedness............................................. 33
Section 4.12. Modification, Extension, Etc.
of Senior Indebtedness................................... 33
ARTICLE V
SATISFACTION AND DISCHARGE
Section 5.01. Satisfaction and Discharge
of Indenture...................................... 34
Section 5.02. Defeasance................................................. 35
Section 5.03. Application of Trust Money................................. 36
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Section 5.04. Repayment of Moneys Held by
Paying Agent............................................. 36
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default.......................................... 37
Section 6.02. Acceleration of Maturity;
Rescission and Annulment................................. 38
Section 6.03. Collection of Indebtedness and
Suits for Enforcement by
Trustee.................................................. 40
Section 6.04. Trustee May File Proofs of Claim........................... 41
Section 6.05. Trustee May Enforce Claims
Without Possession of Securities......................... 42
Section 6.06. Application of Money Collected............................. 42
Section 6.07. Limitation on Suits........................................ 43
Section 6.08. Unconditional Right of Holders
to Receive Principal, Premium
and Interest and to Convert.............................. 43
Section 6.09. Restoration of Rights and
Remedies................................................. 44
Section 6.10. Rights and Remedies Cumulative............................. 44
Section 6.11. Delay or Omission Not Waiver............................... 44
Section 6.12. Control by Holders......................................... 45
Section 6.13. Waiver of Past Defaults.................................... 45
Section 6.14. Undertaking for Costs...................................... 45
Section 6.15. Waiver of Stay or Extension Laws........................... 46
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and
Responsibilities......................................... 46
Section 7.02. Notice of Defaults......................................... 48
Section 7.03. Certain Rights of Trustee.................................. 48
Section 7.04. Not Responsible for Recitals
or Issuance of Securities................................ 50
Section 7.05. May Hold Securities........................................ 50
Section 7.06. Money Held in Trust........................................ 50
Section 7.07. Compensation and Reimbursement............................. 50
Section 7.08. Disqualification; Conflicting
Interests................................................ 51
Section 7.09. Corporate Trustee Required;
Eligibility.............................................. 51
Section 7.10. Resignation and Removal;
Appointment of Successor................................. 52
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Section 7.11. Acceptance of Appointment by
Successor................................................ 54
Section 7.12. Merger, Conversion, Consolidation
or Succession to Business................................ 55
Section 7.13. Preferential Collection of
Claims Against Company................................... 55
(a) Segregation and Apportionment
of Certain Collections by
Trustee, Certain Exceptions ....................... 55
(b) Certain Creditor Relationships
Excluded from Segregation
and Apportionment.................................. 58
(c) Definitions of Certain Terms
Used in This Section............................... 59
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.01. Company to Furnish Trustee Names
and Addresses of Holders................................. 60
Section 8.02. Preservation of Information;
Communications to Holders................................ 60
Section 8.03. Reports by Trustee......................................... 62
Section 8.04. Reports by Company......................................... 64
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01. Company May Consolidate, etc.
Only on Certain Terms.................................... 65
Section 9.02. Successor Corporation Substituted.......................... 65
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures without
Consent of Holders....................................... 66
Section 10.02. Supplemental Indentures with
Consent of Holders....................................... 67
Section 10.03. Execution of Supplemental
Indentures............................................... 68
Section 10.04. Effect of Supplemental Indentures.......................... 69
Section 10.05. Conformity with Trust Indenture
Act...................................................... 69
Section 10.06. Reference in Securities to
Supplemental Indentures.................................. 69
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ARTICLE XI
COVENANTS
Section 11.01. Payment of Principal, Premium
and Interest............................................. 69
Section 11.02. Maintenance of Office or Agency............................ 69
Section 11.03. Money for Securities Payments
to Be Held in Trust...................................... 70
Section 11.04. Corporate Existence........................................ 72
Section 11.05. Payment of Taxes and Other
Claims................................................... 72
Section 11.06. Maintenance of Properties.................................. 72
Section 11.07. Waiver of Certain Covenants................................ 73
Section 11.08. Statement by Officers as to
Default.................................................. 73
Section 11.09. Further Assurances......................................... 73
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.01. Applicability of Article................................... 74
Section 12.02. Election to Redeem; Notice
to Trustee............................................... 74
Section 12.03. Selection by Trustee of
Securities to Be Redeemed................................ 74
Section 12.04. Notice of Redemption....................................... 75
Section 12.05. Deposit of Redemption Price................................ 76
Section 12.06. Securities Payable on
Redemption Date.......................................... 76
Section 12.07. Securities Redeemed in Part................................ 77
Section 12.08. Securities No Longer
Outstanding After Notice
to Trustee and Deposit
of Cash.................................................. 77
Section 12.09. Conversion Arrangement on
Call for Redemption...................................... 78
ARTICLE XIII
SINKING FUNDS
Section 13.01. Applicability of Article................................... 79
Section 13.02. Satisfaction of Sinking Fund
Payments with Securities................................. 79
Section 13.03. Redemption of Securities for
Sinking Fund............................................. 80
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ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.01. Exemption from Individual
Liability................................................ 80
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes of Meetings....................................... 81
Section 15.02. Call of Meetings by Trustee................................ 81
Section 15.03. Call of Meetings by Company or
Holders.................................................. 82
Section 15.04. Qualification for Voting................................... 82
Section 15.05. Quorum; Adjourned Meetings................................. 83
Section 15.06. Regulations................................................ 83
Section 15.07. Voting Procedure........................................... 84
Section 15.08. Written Consent in Lieu of
Meetings................................................. 85
Section 15.09. No Delay of Rights by Meeting.............................. 85
ARTICLE XVI
CONVERSION OF DEBENTURES
Section 16.01. Applicability of Article................................... 85
Section 16.02. Right of Holders to Convert
Securities............................................... 86
Section 16.03. Issuance of Shares of Capital
Stock on Conversion...................................... 87
Section 16.04. No Payment or Adjustment for
Interest or Dividends.................................... 88
Section 16.05. Adjustment of Conversion Rate.............................. 88
Section 16.06. No Fractional Shares
to Be Issued............................................. 93
Section 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance............................... 93
Section 16.08. Notice to Holders of a Series
Prior to Taking Certain
Types of Action.......................................... 94
Section 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities............................................ 96
Section 16.10. Compliance With Governmental
Requirements............................................. 96
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Section 16.11. Payment of Taxes Upon
Certificates for Shares
Issued Upon Conversion................................... 96
Section 16.12. Trustee's Duties With Respect
to Conversion Provisions................................. 96
ARTICLE XVII
MISCELLANEOUS
SECTION 17.01. Counterparts............................................... 97
TESTIMONIUM............................................................... 98
SIGNATURES AND SEALS...................................................... 98
ACKNOWLEDGMENTS
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INDENTURE, dated as of _______________, from CENTURY
COMMUNICATIONS CORP., a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 50
Locust Avenue, New Canaan, Connecticut 06840, to _______________________, as
Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with GAAP; and
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(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Seven, are defined in
that Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person shall mean 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 Person means the possession of the power
to direct or cause the direction of the management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
agreement or otherwise; and the terms "controlled by" and "under common control
with" have meanings correlative to the foregoing.
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York, and the County of
Suffolk[, the City of Boston, Massachusetts] and customarily published on each
Business Day, currently expected to be The Wall Street Journal (National
Edition). Where successive publications are required to be made in an Authorized
Newspaper, the successive publications may be made in the same or different
newspapers meeting the foregoing requirements and in each case on any Business
Day.
"Bank Credit Agreement" means the Eighth Restated Credit
Agreement dated as of July 10, 1990 among Century/ Texas and Century Investors,
Inc. as borrowers, Citibank, N.A. as Agent, and the Lenders named therein, as
the same may be amended.
"Bank Notes" means the promissory notes issued pursuant to the
Bank Credit Agreement.
"Bank Obligations" means all obligations of the Company now or
hereafter existing under its Third Restated Pledge and Guaranty Agreement dated
July 10, 1990 (as the same may be amended, supplemented, modified or restated
from time to time and any renewals and extensions thereof) of the obligations of
Century/Texas under the Bank Credit Agreement and the Bank Notes, whether for
principal, interest (including, without limitation, interest, as provided in the
Bank Notes, accruing after the filing of a petition initiating any proceeding
referred to in Sections 6.01(5) and (6)),
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reimbursement of amounts drawn under letters of credit issued pursuant to the
Bank Credit Agreement, fees, expenses or otherwise.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
"Capital Stock" shall mean, when used to refer to "Capital Stock"
into which Securities of a particular series are convertible, stock of any class
of the Company into which Securities of such series are convertible in
accordance with their terms (as specified as contemplated by Section 3.01).
"Century/Texas" shall mean Century Communications Corp., a Texas
corporation, a wholly owned subsidiary of the Company.
"Closing Price," on any day when used with respect to any class
of Capital Stock shall mean (i) if the stock is then listed or admitted to
trading on a national securities exchange in the United States, the last
reported sale price, regular way, for the stock as reported in the consolidated
transaction or other reporting system for securities listed or traded on such
exchange, or (ii) if the stock is listed on the National Association of
Securities Dealers, Inc. Automated Quotations System National Market System (the
"NASDAQ National Market System"), the last reported sale price, regular way, for
the stock, as reported on such list, or (iii) if the stock is not so admitted
for trading on any national securities exchange or the NASDAQ National Market
System, the average of the last reported closing bid and asked prices reported
by the National Association of Securities Dealers, Inc. Automated Quotations
System as furnished by any member in good standing of the National Association
of Securities Dealers, Inc., selected from time to time by the Company for the
purpose or as quoted by the National Quotation Bureau incorporated. In the event
that no such quotation is available for any day, the Board of Directors shall be
entitled to determine the current market
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price on the basis of such quotations as it considers appropriate.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee, ________________________________________________________, at which at
any particular time its corporate trust business shall be administered.
"corporation" includes corporations, associations, companies and
business trusts.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Event of Default" has the meaning specified in Section 6.01.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
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"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.01.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Interest Swap Obligations" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"New York Presenting Agent" means
_____________________________________________ having offices at
_____________________________________.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of
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acceleration of the Maturity thereof pursuant to Section 6.02.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment or
redemption money or, as provided in Section 5.02 hereof, U.S. Government
Obligations, in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or,
except for purposes of Section 5.01, set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and
(iv) Securities converted into Capital Stock in accordance with
Article Sixteen hereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the maturity
thereof pursuant to Section 6.01 and (ii) Securi-
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ties owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, or upon such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"principal" of a debt security, including any Security, on any
day and for any purpose means the amount (including, without limitation, 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 such date and for such purpose (including, without limitation, in
connection with any sinking fund, upon any redemption at the option of the
Company upon any purchase or exchange at the option of the Company or the holder
of such debt security and upon any acceleration of the maturity of such debt
security).
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"principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price (exclusive of accrued interest, if any) at which it is
to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Reporting Date" shall mean, when used with respect to any series
of Securities, the date (and each successive anniversary thereof) established by
a Board Resolution pursuant to Section 3.01 which shall be a date no more than
ten months from the date of the initial issuance of such series of Securities
under this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer assigned to and working in the corporate trust department of
the Trustee, or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Senior Indebtedness" shall mean (a) the Bank Obligations; (b)
the principal of (and premium, if any) and interest on (i) all other
indebtedness for money borrowed by the Company, whether outstanding on the date
of this Indenture or hereafter created or incurred, (ii) all other indebtedness
for money borrowed by another Person in which the Company has an equity interest
or has the right to purchase an equity interest, and guaranteed in whole or in
part directly or indirectly by the Company (whether such guarantee is
outstanding on the date of this Indenture or hereafter created or incurred), or
(iii) all indebtedness
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constituting purchase money indebtedness for the payment of which the Company is
directly or contingently liable, whether outstanding on the date of this
Indenture or hereafter created or incurred; (c) any obligation of the Company to
purchase or guarantee indebtedness of, to supply funds to or to invest in,
another Person in which the Company has an equity interest or has the right to
purchase an equity interest (whether such obligation is outstanding on the date
of this Indenture or is hereafter created or incurred); (d) any obligation of
the Company to any Person in respect of surety or similar bonds issued by such
Person in connection with entering into, renewing, extending or maintaining any
cable television franchise granted by a governmental authority or any
construction in respect of any cable television system by the Company or any
other Person in which the Company has an equity interest or has the right to
purchase an equity interest; (e) any obligation of the Company to compensate,
reimburse or indemnify an issuer with respect to any letter of credit issued at
the request of or for the account of the Company; (f) any obligation of the
Company under any Interest Swap Obligations or Currency Agreement (other than
any Interest Swap Obligations or Currency Agreement the payments with respect to
which correspond to payments on, or one of the events permitting the early
termination of which is expressly connected to, any indebtedness of the Company
which is expressed to be subordinate to other indebtedness of the Company or to
rank on a parity with the Securities); and (g) all renewals, extensions or
refundings of any such obligations, indebtedness and guarantees; provided,
however, that Senior Indebtedness shall not include the Securities; and,
provided, further, that if, by the terms of the instrument creating or
evidencing any obligation, indebtedness or guarantee referred to in clauses (a),
(b), (c), (d), (e), (f) and (g), above, it is expressly provided that such
obligation, indebtedness or guarantee is subordinate to all indebtedness of the
Company other than the Securities or indebtedness ranking pari passu with the
Securities or is not superior in right of payment to the Securities, such
obligation, indebtedness or guarantee shall not be included as Senior
Indebtedness but shall rank pari passu with the Securities. As used in the
preceding sentence the term "purchase money indebtedness" shall mean
indebtedness evidenced by a note, debenture, bond or other instrument or any
other written obligation to pay money (whether or not secured by any lien or
other security interest) issuer or assumed as all or a part of the consideration
for the acquisition of property, assets or securities whether by purchase,
merger, consolidation or otherwise.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
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"Stated Maturity," when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this instrument was executed,
except as provided in Section 10.05.
"U.S. Government Obligations" has the meaning specified in
Section 5.02.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and
Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
(including any covenants compliance with which constitutes a condition
precedent), if any, 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 (including any covenants
compliance with which constitutes a condition precedent), if any, have been
complied with, except that in
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the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than annual
certificates provided pursuant to Section 11.08) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
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or representation by counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing or by the record of the Holders voting in favor thereof at
any meeting of such Holders duly called and held in accordance with the
provisions of Article Fifteen; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or any such record is delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 15.07 and the record so proved
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof, or may be
proved in such other manner as shall be deemed sufficient by the Trustee. Where
such execution is by a signer acting in a capacity other
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than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company or the Trustee, as applicable, may set a date for
the purpose of determining the Holders of Securities entitled to consent, vote
or take any other action referred to in this Section 1.04, which date shall be
not less than 10 days nor more than 60 days prior to the taking of the consent,
vote or other action.
SECTION 1.05. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of the Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office
and, unless otherwise herein expressly provided, any such document shall
be deemed to be sufficiently made, given, furnished or filed upon its
receipt by a Responsible Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
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SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c), such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining
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provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders and to the extent provided in Article Four
the holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of (and premium, if any) or interest, if any,
on such Security need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, provided that no additional interest shall
accrue with respect to the payment due on such date for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form
established from time to time by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their
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execution of such Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities. Any such Board Resolution or record of such action shall have
attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
The Trustee's certificate of authentication shall be in
substantially the form set forth in this Article.
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 2.02. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated therein
issued under the within-mentioned Indenture.
___________________________,
as Trustee
By _________________________________
Authorized Signature
ARTICLE III
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall
be established in or pursuant to a
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Board Resolution, and set forth in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
securities of the series pursuant to Section 3.04, 3.05, 3.06, 10.06 or
12.07);
(3) the date or dates on which the principal (and premium, if
any) of the Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates (which may be fixed or variable), or the
method of determination thereof, at which the Securities of the series
shall bear interest, if any, including the rate of interest applicable
on overdue payments of principal or interest, if different from the rate
of interest stated in the title of the Security, the date or dates from
which such interest shall accrue or the method of determination thereof,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Interest Payment
Date;
(5) the Paying Agent or Paying Agents for the Securities of the
series if other than the Trustee;
(6) the Place of Payment of the Securities of the series if other
than the Corporate Trust Office of the Trustee;
(7) if applicable, the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof
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and the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.02;
(11) if the provisions of Section 5.02 of this Indenture are to
apply to the Securities of the series, a statement indicating the same;
(12) any deletions from or modifications of or additions to the
Events of Default set forth in Section 6.01 pertaining to the Securities
of the series;
(13) the form of the Securities of the series;
(14) the obligation, if any, of the Company to permit the
conversion of the Securities into Capital Stock and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion rate, the conversion period
and any other provision in addition to or in lieu of those set forth in
this Indenture relative to such obligation);
(15) any other terms of a particular series and any other
provisions expressing or referring to the terms and conditions upon
which the Securities of that series are to be issued, which terms and
provisions are not in conflict with the provisions of this Indenture or
do not adversely affect the rights of Holders of any other series of
Securities then Outstanding); provided, however, that the addition to or
subtraction from or variation of Articles Five, Six, Nine and Eleven
(and Section 1.01 insofar as it relates to the definition of certain
terms as used in such Articles) with regard to the Securities of a
particular series shall not be deemed to
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constitute a conflict with the provisions of those
Articles; and
(16) the Reporting Date of the Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Four. The Securities of all series
shall rank on a parity in right of payment.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by Section 3.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 7.01) shall be
fully protected in relying upon the documents specified in Section 314 of the
Trust Indenture Act, and, in addition:
(a) a Board Resolution relating thereto, and if applicable, an
appropriate record of any action taken pursuant to such Board
Resolution, certified by the Secretary or Assistant Secretary of the
Company;
(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel which shall state
(1) that the form and terms of such Securities have been
established by or pursuant to Board Resolutions, by a supplemental
indenture or by both such resolution or resolutions and such
supplemental indenture in conformity with the provisions of this
Indenture;
(2) that the supplemental indenture, if any, when executed and
delivered by the Company and the Trustee, will constitute a valid and
legally binding obligation of the Company; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles, and will be entitled to the benefits of this Indenture.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will
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affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 3.05. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the
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register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of an equal aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing with such signature
guaranteed by a commercial bank reasonably acceptable to the Trustee or by a
member of a national securities exchange.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 10.06 or 12.07 not involving any
transfer.
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The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
12.03 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 3.06. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
At the option of the Company, interest on the Securities of any
series that bear interest may be paid by mailing a check to the address of the
Person entitled thereto as such address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date
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of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Securities
of such series at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and promptly shall be canceled by it
and, if surrendered to the Trustee, shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered promptly
shall be canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
ARTICLE IV
SUBORDINATION OF SECURITIES
SECTION 4.01. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of Securities
of any series by his acceptance thereof, whether upon original issue or upon
registration of transfer or assignment, likewise covenants and agrees, that the
indebtedness evidenced by the Securities of such series, including the principal
thereof (and premium, if any) and interest thereon, shall be subordinated and
subject in right of payment, to the extent and in the manner set forth in this
Article, to the prior payment in full of all Senior Indebtedness, whether now
outstanding or hereafter incurred.
SECTION 4.02. Payment Over of Proceeds of
Securities on Dissolution, etc.
Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any dissolution or winding up or total or partial liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy,
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insolvency, receivership or other proceedings, or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Company or otherwise:
(a) all principal (and premium, if any) and interest due on all
Senior Indebtedness shall first be paid in full, or payment thereof
provided for in money or money's worth, before the Holders of the
Securities of any series or the Trustee on their behalf shall be
entitled to retain any assets so paid or distributed (other than shares
of stock of the Company as reorganized or readjusted or securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment, junior to, or the payment of which is
subordinated at least to the extent provided in this Article to the
payment of, all Senior Indebtedness which may at the time be outstanding
or to any securities issued in respect thereof under any such plan of
reorganization or readjustment) with respect to principal (and premium,
if any) and interest on the Securities of any such series;
(b) upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other
than shares of stock of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment, junior to, or the payment of
which is subordinated at least to the extent provided in this Article to
the payment of, all Senior Indebtedness which may at the time be
outstanding or to any securities issued in respect thereof under any
such plan of reorganization or readjustment), to which the Holders of
Securities of any series or the Trustee on behalf of such Holders would
be entitled, except for the provisions of this Article, shall be paid by
the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution
directly to the holders of Senior Indebtedness (pro rata to each such
holder on the basis of the respective amounts of Senior Indebtedness
held by each such holder) or their representatives, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or
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distribution is made to the Holders of Securities of any series; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than shares of stock of
the Company as reorganized or readjusted or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, junior to, or the payment of which is subordinated at
least to the extent provided in this Article to the payment of, all
Senior Indebtedness which may at the time be outstanding or to any
securities issued in respect thereof under any such plan of
reorganization or readjustment), shall be received by the Trustee, any
Paying Agent or the Holders of Securities of any series before all
Senior Indebtedness is paid in full, such payment or distribution shall
be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued (pro rata to each such holder as
aforesaid) for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid
in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Indebtedness.
(d) The consolidation or merger of the Company with or into
another corporation, or any consolidation or merger of any other
corporation with or into the Company, or the liquidation or dissolution
of the Company following the sale, transfer or lease of substantially
all of the property and assets of the Company to another corporation
shall not be deemed a dissolution, winding-up or total or partial
liquidation or reorganization of the Company or an assignment or other
marshalling of the assets and liabilities of the Company for purposes of
this Section 4.02 so long as such other corporation, as a part of any
such consolidation, merger, sale, conveyance or lease, shall comply with
the conditions stated in Article Nine.
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SECTION 4.03. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of Securities of any series shall be subrogated pro rata (based on the
respective amounts paid over for the benefit of the holders of Senior
Indebtedness) with the Holders of Securities of each other series and any other
subordinated indebtedness of the Company which by its terms ranks on a parity in
right of payment with the Securities (the Securities and such other subordinated
indebtedness being in this Section referred to as "parity indebtedness") to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company applicable to Senior Indebtedness until
the principal of (and premium, if any) and interest on the Securities of each
series shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities of any series or
the holders of other parity indebtedness, or the Trustee or the trustee with
respect to any parity indebtedness, would be entitled except for the provisions
of this Article shall, as between the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the Securities of any series
and the holders of other parity indebtedness, be deemed to be a payment by the
Company to or on account of the Securities, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of any series and
the holders of other parity indebtedness on the one hand and the holders of
Senior Indebtedness on the other hand.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, any Paying Agent and the Holders shall
be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending or upon a certificate of the liquidating
trustee or agent or other person making any payment or distribution to the
Trustee, any Paying Agent or the Holders of Securities of any series for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
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SECTION 4.04. Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture,
or in the Securities of any series, is intended to or shall alter or impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders the principal of (and premium, if any)
and interest on the Securities, as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Company other than the
holders of the Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holders from exercising all remedies otherwise permitted by
applicable law upon an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company otherwise payable or
delivered to the Trustee or the Holders upon the exercise of any such remedy.
SECTION 4.05. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture,
or in the Securities of any series, shall affect the obligation of the Company
to make, or prevent the Company from making, at any time except (i) during the
pendency of any dissolution, winding up, liquidation or reorganization
proceeding referred to in Section 4.02, and (ii) during the continuance of any
default specified in Section 4.06, payments at any time of principal of (and
premium, if any) or interest on the Securities of any series or of amounts to be
available as a sinking fund or analogous obligation for the Securities of any
series.
SECTION 4.06. Payment Subject to Prior Payment of Amounts
Due to Holders of Senior Indebtedness.
No direct or indirect payment by or on behalf of the Company on
account of the principal of (and premium, if any) or interest on Securities of
any series shall be made if, at the time of such payment, there exists a default
in the payment of all or any portion of principal of (and premium, if any) or
interest on any Senior Indebtedness (and the Trustee has received written notice
thereof), and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of such Senior
Indebtedness.
The restrictions in this Article on payments on account of the
principal of (and premium, if any) and interest on the Securities of any series
shall include, without
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limitation, payments of principal (and premium, if any) upon mandatory or
optional redemptions, redemptions through the operation of and deposits for the
sinking fund or analogous obligations and purchases of Securities of any series
by the Company; provided, however, that nothing in this Section shall prevent
(a) any payment being made in connection with a redemption of Securities of any
series if (i) notice of such redemption has been given pursuant to Section 12.04
and (ii) prior to the time of the mailing of such notice of redemption the
Trustee shall not have received notice of any default specified in the first
paragraph of this Section with respect to any Senior Indebtedness or notice to
the effect that any such default will exist at the date fixed for such
redemption or as a result of such redemption; or (b) the application by the
Trustee or any Paying Agent of any amounts deposited, at least three Business
Days prior to the occurrence of any payment default or the receipt of notice by
the Trustee of any other default specified in the first paragraph of this
Section, with the Trustee or such Paying Agent in trust for the purpose of
paying a specified instalment or installments of interest on the Securities of
any series, to the payment of such instalment of interest.
SECTION 4.07. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
7.08 or elsewhere in this Indenture shall be construed to deprive the Trustee of
its rights as such holder.
SECTION 4.08. Trustee Entitled to Act to
Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 4.09. Provisions for Benefit of Holders
of Senior Indebtedness.
The provisions of this Article constitute a continuing offer to
all persons who in reliance upon such provisions become holders of Senior
Indebtedness. Such provisions are made for the benefit of the holders of Senior
Indebtedness and such holders are hereby made obligees hereunder to the same
extent as if their names were written
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herein as such, and they or each of them may proceed to enforce such provisions.
In furtherance of the foregoing, each holder of Senior
Indebtedness (i) is hereby irrevocably authorized and empowered but shall not be
obligated to demand, sue for, collect, receive and receipt for such holder's
ratable share of all payments and distributions in respect of the Securities
which are required to be paid or delivered to holders of Senior Indebtedness as
provided herein, and to file and prove all such claims and take all such other
action in the name of the Holders or otherwise, as such holder of Senior
Indebtedness may determine to be necessary or appropriate for the enforcement of
the rights provided herein, and (ii) may require the delivery to him by each
Holder of such other instruments confirming such authorization and such powers
of attorneys, proofs of claim, assignments of claim and other instruments, and
the taking of all such other action, as he may request in order to enable such
holder of Senior Indebtedness to enforce such holder's ratable share of all
Securities and all such payments and distributions in respect thereof.
No present or future holder of Senior Indebtedness shall be
prejudiced in any way in the rights of such holder to enforce subordination of
the Securities of all series by any act or failure to act on the part of the
Company or any such holder. Until all Senior Indebtedness has been paid in full,
no Holder of Securities of any series shall agree to, and the Company shall not
accept, any release, cancellation, discharge or forgiveness of any Securities of
such Holder.
SECTION 4.10. Notice to Trustee to Effectuate
Subordination.
The Company shall give prompt written notice to the Trustee of
any dissolution or winding-up or total or partial liquidation or reorganization
of the Company within the meaning of Section 4.02, or of the existence of any
default specified in Section 4.06. Notwithstanding any of the provisions of this
Article or any other provision of this Indenture, 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 to or by the Trustee, or the taking of any
other action by the Trustee pursuant to this Article, unless and until the
Trustee shall have received written notice thereof from the Company or from one
or more holders of Senior Indebtedness or from any trustee therefor; and, prior
to the receipt of any such written notice the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that, (i) except
as otherwise provided in this Section or in Section 4.05 or 4.06, if prior to
three Business Days before
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the date upon which by the terms hereof any such payment of the principal of
(and premium, if any) or interest on any Security shall be due and payable, the
Trustee shall not have received the notice provided for in this Section, then
the Trustee and any Paying Agent shall have full power and authority to receive
such payment and to apply the same to the purpose for which it was received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date; and (ii) if prior to the time of the mailing of notice of
redemption of any Securities pursuant to Section 12.04 the Trustee shall not
have received such notice, then, anything contained in this Article to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive any payment and to apply the same to the redemption of such Securities,
and shall not be affected by any notice to the contrary which may be received by
it on or after such time of mailing. The Trustee and any Paying Agent shall be
entitled to rely conclusively on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness or a trustee
on behalf of such holder to establish that the notice provided for in this
Section was given by a holder of Senior Indebtedness or a trustee on behalf of
any such holder or holders.
SECTION 4.11. Trustee Has No Fiduciary Duty to
Holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness. The Trustee shall not
be liable to any holder of Senior Indebtedness if the Trustee shall mistakenly,
but in good faith, pay over or transfer to Holders, the Company or any other
Person money or assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article.
SECTION 4.12. Modification, Extension, etc.
of Senior Indebtedness.
The holders of Senior Indebtedness may, without affecting in any
manner the subordination of the payment of the principal of (and premium, if
any) and interest on the Securities of any series, at any time or from time to
time and in their absolute discretion, change the manner, place or terms of
payment, change or extend the time of payment of, or renew or alter, any Senior
Indebtedness, or amend or supplement any instrument pursuant to which any Senior
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Indebtedness is issued, or exercise or refrain from exercising any other of
their rights under the Senior Indebtedness including, without limitation, the
waiver of default thereunder, all without notice to or assent from the Holders
or the Trustee.
ARTICLE V
SATISFACTION AND DISCHARGE
SECTION 5.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 11.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation (other than
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Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06), for principal (and
premium, if any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 7.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 5.03 and the
last paragraph of Section 11.03 shall survive.
SECTION 5.02. Defeasance.
Provided that the same has been duly authorized with respect to
Securities of a particular series pursuant to Section 3.01(11), if, at any time
after the date hereof, the Company shall deposit with the Trustee, in trust for
the benefit of the Holders thereof, (i) funds sufficient to pay, or (ii) U.S.
Government Obligations (as defined below) as will, or will together with the
income thereon without consideration of any reinvestment thereof, be sufficient
to pay all sums due for the principal of (and premium, if any) and interest, if
any, on the Securities of such series, as they shall become due from time to
time, and shall pay all costs, charges and expenses incurred or to be incurred
by the Trustee in relation thereto or in carrying out the provisions of this
Indenture, this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) the Company's obligations, as the
case may be, with respect to Securities of such series under Sections 3.05, 3.06
and 11.02, (ii) rights of Holders to receive payments of the principal of (and
premium, if any) and interest, if any, on the Securities of such series as they
shall become due from time to time and other rights, duties and obligations of
Holders as beneficiaries hereof with respect to the amounts so deposited with
the Trustee, (iii) rights of conversion of any Security, the terms of which
provide for conversion (which shall continue in full force and effect pursuant
to the terms set forth in Article Sixteen to the extent provided for in such
terms), and (iv)
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the rights, obligations and immunities of the Trustee hereunder (for which
purposes the Securities of such series shall be deemed outstanding)), and the
Trustee, on the written request of the Company, accompanied by the Officer's
Certificate and Opinion of Counsel required by Section 1.02, shall execute and
deliver to the Company such instruments as shall be requisite to evidence the
satisfaction thereof with respect to Securities of such series.
As used in this Article Five, "U.S. Government Obligations" means
securities that are (i) direct obligations of the United States of America for
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation of the United States of
America, which, in either case under clauses (i) or (ii), are not callable or
redeemable at the option of the issuer thereof, and will also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specified payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 5.03. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.03,
all money deposited with the Trustee pursuant to Sections 5.01 and 5.02 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
SECTION 5.04. Repayment of Moneys Held by Paying Agent.
Any money deposited with the Trustee or any other Paying Agent
remaining unclaimed by the holders of any Securities for two years and eleven
months after the date upon which the principal of or interest on such Securities
shall have become due and payable shall be repaid to the
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Company by the Trustee or any such other Paying Agent and such holders shall
thereafter be entitled to look to the Company only as general creditors for
payment thereof (unless otherwise provided by law); provided, however, that,
before the Trustee or any such other Paying Agent is required to make any such
payment to the Company, the Trustee may, upon the request of the Company and at
the expense of the Company, cause to be published once in an Authorized
Newspaper a notice that such money remains unclaimed and that, after the date
set forth in said notice, the balance of such money then unclaimed will be
returned to the Company.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
HOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days (whether or not such default shall be by reason
of the operation of the provisions of Article Four); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity (whether or not
such default shall be by reason of the operation of the provisions of
Article Four); or
(3) default in the deposit of any sinking fund payment or
analogous obligation, when and as due by the terms of any Security of
that series (whether or not such default shall be by reason of the
operation of the provisions of Article Four); or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or any Security of that series
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this
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Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 90
days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become
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due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 6.02. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable, anything in this Indenture or in any of the
Securities of such series to the contrary notwithstanding; provided, however,
that payment of principal of (and premium, if any) and interest on the
Securities of such series shall remain subordinated to the extent provided in
Article Four.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of that
series which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 6.03. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days,
(2) default is made in the payment of the principal of (or,
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the making or satisfaction of any sinking
fund payment or analogous obligation when the same becomes due pursuant
to the terms of any Security,
the Company, upon demand of the Trustee, will pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, including any sinking fund payment or analogous
obligations (and premium, if any) and interest, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree
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and may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in respect
of the Securities and to file such other papers or documents and take
such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such
matter, as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claim and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
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Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding except as
aforesaid, to vote for the election of a trustee in bankruptcy or similar person
or to participate as a member, voting or otherwise, on any committee of
creditors.
SECTION 6.05. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Subject to the provisions of Article Four, any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
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THIRD: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomever may be so lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than a majority in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 6.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment (subject to the provisions of Article Four) of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security on
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date), the right, which is also absolute and
unconditional, to require the conversion of his Securities pursuant to Article
Sixteen hereof if the terms of such Securities provide for convertibility
pursuant to Section 3.01 and the right to institute suit for the enforcement of
any such payment or of such right to convert, and such rights shall not be
impaired without the consent of such Holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise
any right or remedy accruing upon any
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Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 6.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders of the Securities of such
series not taking part in such direction, or to the Holders of the
Securities of any other series, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 6.14. Undertaking for 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, 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 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations
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shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture but need not verify the accuracy of the contents thereof or
whether procedures specified by or pursuant to the provisions of this
Indenture have been followed in the preparation thereof.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise 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.
(c) 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
(1) this subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in Section
6.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the
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performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund or analogous obligation instalment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 6.01(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(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 and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
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(h) The Trustee shall not be deemed to have notice or knowledge
of any matter unless a Responsible Officer assigned to and working in
the Trustee's corporate trust department has actual knowledge thereof or
unless written notice thereof is received by the Trustee at the
Corporate Trust Office and such notice references the Securities
generally, the Company or this Indenture. Whenever reference is made in
this Indenture to an Event of Default, such reference shall, insofar as
determining any liability on the part of the Trustee is concerned, be
construed to refer only to an Event of Default of which the Trustee is
deemed to have knowledge in accordance with this paragraph; and
(i) The permissive right of the Trustee to take or refrain from
taking any actions enumerated in this Indenture shall not be construed
as a duty.
SECTION 7.04. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 7.05. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and, subject to Sections 7.08 and 7.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 7.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder.
SECTION 7.07. Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses, including reasonable attorneys' fees, of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee, except funds held in
trust for the benefit of the Holders of particular Securities.
SECTION 7.08. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether the
Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the Securities of any series, there shall be
excluded this Indenture with respect to Securities of any particular series of
Securities other than that series. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Corporate Trustee Required; Eligibility.
There shall at all times be a corporate Trustee hereunder which
complies with the requirements of Section 310(a) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000, subject to
supervision
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or examination by Federal or State authority and having its Corporate Trust
Office in the Borough of Manhattan, The City of New York or the County of
Suffolk, the City of Boston, Massachusetts. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 7.10. Resignation and Removal; Appointment
of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 7.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 7.11 shall not have been delivered to the Trustee within 10 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 7.08(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 7.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 6.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 7.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
7.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 7.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
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series by mailing written notice of such event to all Holders of Securities of
such series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 7.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other
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such Trustee; and upon execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.12. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 7.13. Preferential Collection of Claims
Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within
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three months prior to a default, as defined in subsection (c) of this Section,
or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the Holders of the Securities and the holders of
other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three-month period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any claims
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
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security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other
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property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and proceeds thereof, or (ii) in
lieu of such apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of other
indenture securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any securities
or other property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as between the
secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this
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Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within
the classification of self-liquidating paper, as defined in subsection
(c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the
other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture
(i) under which the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of this Section and
(iii) under which a default exists at the time of the apportionment of
the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
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(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation;
(5) the term "Company" means any obligor upon the Securities at
the time in question; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or
Title 11 of the United States Code.
ARTICLE VIII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.01. Company to Furnish Trustee Names
and Addresses of Holders.
The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, either (i) not later than June 1 and November
1 in each year in the case of Original Issue Discount Securities of any
series which by their terms do not bear interest prior to Maturity, or
(ii) not more than 15 days after each Regular Record Date in the case of
Securities of any other series, a list, each in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Securities of such series as of the preceding June 1 or November 1 or as
of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar with
respect to Securities of any series, no such lists need be furnished.
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SECTION 8.02. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 8.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 8.01 upon receipt of a new list so furnished.
(b) If three or more Holders (herein 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 with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit to such other Holders, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the informa-
tion preserved at the time by the Trustee in accordance
with Section 8.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 8.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 8.02(a) 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
or would be in violation of applicable law. Such written statement shall
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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 Holders 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) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held responsible by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 8.02(b), 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 Section
8.02(b).
SECTION 8.03. Reports by Trustee.
(a) Within 60 days after the first Reporting Date occurring
subsequent to the initial issuance of Securities hereunder and within 60 days
after each Reporting Date occurring thereafter, the Trustee shall transmit by
mail to the Holders, as hereinafter provided, a brief report (but in no event
shall such report be transmitted more than twelve months after the date of the
initial issuance of the Securities in the case of the first such report and at
stated intervals of more than twelve months in the case of each subsequent
report) dated as of such Reporting Date with respect to any of the following
events which may have occurred during the twelve months preceding the date of
such report (but if no such event has occurred within such period, no report
need be transmitted):
(1) any change to its eligibility under Section 7.09 and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and, if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date
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of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any property
or funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities Outstanding for which it is Trustee
on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on
the Securities) to the Trustee in its individual capacity, on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in Section
7.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 7.02.
(b) The Trustee shall transmit by mail to the Holders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding for which it is
Trustee at such time, such report to be transmitted within 90 days after such
time.
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(c) All reports required by this Section 8.03, and all other
reports or notices which are required by any other provision of this Indenture
to be transmitted in accordance with the provisions of this Section 8.03, shall
be transmitted by mail: (i) to all registered Holders, as their names and
addresses appear in the Security Register; (ii) to such Holders of such series
as have, within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and (iii) except in the case of
reports pursuant to subsection (b) of this Section 8.03, to all Holders of such
series whose names and addresses have been furnished to or received by the
Trustee pursuant to Section 8.01. A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 8.04. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
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(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
ARTICLE IX
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.01. Company May Consolidate, etc.
Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
and
(2) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 9.02. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of the
properties and assets of the
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Company substantially as an entirety in accordance with Section 9.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE X
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without
Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities pursuant to Article Nine and to
provide for the adjustment of conversion rights pursuant to Section
16.07; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series of Securities,
stating that such Events of Default are expressly being included solely
to be applicable to such series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to provide for
uncertificated Securities (so long as any "registration-required
obligation" within the meaning
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of section 163(f)(2) of the Internal Revenue Code of
1986, as amended, is in registered form for purposes of
such section); or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provision with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series in any material
respect.
SECTION 10.02. Supplemental Indentures
with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provision to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on,
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any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or
alter or impair the right to convert any Security at the rate and upon
the terms provided for in this Indenture or the form of such Security,
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02, or
adversely affect any right of repayment at the option of the Holder of
any Security, or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section, Section 6.13 or
Section 11.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
Notwithstanding the foregoing, no consent of the Holders shall be necessary to
permit the execution of supplemental indentures pursuant to Section 16.07. A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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SECTION 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee in its sole discretion may, but shall not be obligated
to, enter into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 10.06. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE XI
COVENANTS
SECTION 11.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders
of Securities of each series that it will duly and punctually pay the principal
of (and premium, if
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any) and interest, if any, on the Securities of that series in accordance with
the terms of the Securities of that series and this Indenture.
SECTION 11.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
surrendered for registration of transfer and exchange, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where the Securities may be presented for payment
or, for Securities of each series that is convertible, for conversion. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee or the office of the New York Presenting Agent, and the Company hereby
jointly appoints the Trustee and the New York Presenting Agent as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 11.03. Money for Securities Payments
to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on the Securities of
that series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act or of any failure by the Company (or by any
other obligor on the Securities of that series) to make any
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payment of the principal of (and premium, if any) or interest, if any, on the
Securities of such series when the same shall be due and payable.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, at or prior to the opening of business on each
due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the
principal (and 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
(and premium, if any) or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
If the Company shall appoint a Paying Agent other than the
Trustee for any series of Securities, 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, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on the Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or for any other reason, pay or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust for any such series
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
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Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request subject to
applicable abandoned property and escheat law, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once a week for two consecutive
weeks (in each case on any day of the week) in an Authorized Newspaper notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 11.04. Corporate Existence.
Subject to Article Nine, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 11.05. Payment of Taxes and Other Claims.
The Company will, and will cause each Subsidiary to, pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that neither the
Company nor any Subsidiary shall be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.06. Maintenance of Properties.
The Company will cause all its properties used or useful in the
conduct of its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements,
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betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of any
of its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders of the Securities of any series.
SECTION 11.07. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 11.04, 11.05 and 11.06,
with respect to the Securities of any series, if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 11.08. Statement by Officers as to Default.
The Company will, within 90 days after the close of each fiscal
year, commencing with the first fiscal year following the issuance of Securities
of any series under this Indenture, file with the Trustee a certificate of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, covering the period from the date of issuance
of such Securities to the end of the fiscal year in which such Securities were
issued, in the case of the first such certificate, and covering the preceding
fiscal year in the case of each subsequent certificate, and stating whether or
not, to the knowledge of the signer, the Company has complied with all
conditions and covenants on its part contained in this Indenture, and, if the
signer has obtained knowledge of any default by the Company in the performance,
observance or fulfillment of any such condition or covenant, specifying each
such default and the nature thereof. For the purpose of this Section 11.08,
compliance shall be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
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SECTION 11.09. Further Assurances.
From time to time whenever reasonably demanded by the Trustee,
the Company will make, execute and deliver or cause to be made, executed and
delivered any and all such further and other instruments and assurances as may
be reasonably necessary or proper to carry out the intention or facilitate the
performance of the terms of this Indenture.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for Securities of any
series) in accordance with this Article.
SECTION 12.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 12.03. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination
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for Securities of that series; provided, however, that Securities of such series
registered in the name of the Company shall be excluded from any such selection
for redemption until all Securities of such series not so registered shall have
been previously selected for redemption. For the purposes of such selection in
case of redemption of less than all the Securities of any series, the Trustee
and the Company shall have the option to treat as Outstanding Securities any
Securities of such series which are surrendered for conversion after the
fifteenth day immediately preceding the mailing of notice of such redemption,
and need not treat as Outstanding Securities any Securities authenticated and
delivered during such period in exchange for the unconverted portion of any
Securities converted in part during such period.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.04. Notice of Redemption.
Notice of redemption shall be given not less than 10 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
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(5) if applicable, the current conversion price or rate,
(6) if applicable, that the right of the Holder to convert
Securities called for redemption shall terminate at the close of
business on the Redemption Date (or such other day as may be specified
as contemplated by Section 3.01 for Securities of any series),
(7) if applicable, that Holders who want to convert Securities
called for redemption must satisfy the requirements for conversion
contained in such Securities,
(8) that, subject to Section 16.04, interest, if any, accrued to
the date fixed for redemption will be paid as specified in said notice,
(9) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(10) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. No such notice shall
be given at any time when the Company or the Trustee shall have received notice
that there exists a default specified in the first paragraph of Section 4.06 or
that such a default will exist at the date fixed for such redemption or as a
result of such redemption.
SECTION 12.05. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 11.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities of such series
called for redemption on such date which have been converted prior to the date
of such deposit.
SECTION 12.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemp-
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tion Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to bear
interest. The right to convert such Securities or portions thereof, if the terms
of such Securities provide for conversion pursuant to Section 3.01, shall
terminate at the close of business on the Redemption Date or such other day as
may be specified as contemplated by Section 3.01 for Securities of such series.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
subject to Section 16.04, installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
If any Security called for redemption pursuant to Section 12.01
is converted pursuant to Article Sixteen, any monies deposited with the Trustee
for the purpose of paying or redeeming any such Security shall be promptly paid
to the Company.
SECTION 12.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the security so surrendered. Securities in denominations larger than $1,000 may
be redeemed in part, but only in whole multiples of $1,000.
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SECTION 12.08. Securities No Longer Outstanding
After Notice to Trustee and
Deposit of Cash.
If the Company, having given notice to the Trustee as provided in
Section 12.02, shall have deposited with the Trustee or a Paying Agent, for the
benefit of the Holders of any Securities of any series or portions thereof
called for redemption in whole or in part cash or other form of payment if
permitted by the terms of such Securities (which amount shall be immediately due
and payable to the Holders of such Securities or portions thereof) in the amount
necessary so to redeem all such Securities or portions thereof on the Redemption
Date and provision satisfactory to the Trustee shall have been made for the
giving of notice of such redemption, such Securities or portions thereof, shall
thereupon, for all purposes of this Indenture, be deemed to be no longer
Outstanding, and the Holders thereof shall be entitled to no rights thereunder
or hereunder, except the right to receive payment of the Redemption Price,
together with interest accrued to the Redemption Date, on or after the
Redemption Date of such Securities or portions thereof and the right to convert
such Securities or portions thereof, if the terms of such Securities provide for
convertibility pursuant to Section 3.01 at or prior to the close of business on
the Redemption Date.
SECTION 12.09. Conversion Arrangement
on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee or the Paying Agent in trust
for the Holders, on or before 10:00 a.m. New York time on the Redemption Date,
an amount no less than the Redemption Price, together with interest, if any,
accrued to the Redemption Date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Sixteen) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the last day on which
Securities of such series
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called for redemption may be converted in accordance with this Indenture and the
terms of such Securities, subject to payment of the above amount aforesaid. The
Trustee or the Paying Agent shall hold and pay to the Holders whose Securities
are selected for redemption any such amount paid to it in the same manner as it
would moneys deposited with it by the Company for the redemption of Securities.
Without the Trustee's and the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee or the Paying
Agent as set forth in this Indenture, and the Company agrees to indemnify the
Trustee and the Paying Agent from, and hold them harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee and the
Paying Agent in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE XIII
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 13.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 13.02. Satisfaction of Sinking Fund
Payments with Securities.
The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for
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redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited or converted pursuant to the terms of such
Securities. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 13.02 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 12.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 12.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 12.06 and 12.07.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution,
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statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers or directors, as such, of the Company
or of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of the
Securities.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be
called at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to waive any default hereunder
and its consequences, or to take any other action authorized to be taken
by the Holders of Securities pursuant to any of the provisions of
Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified percentage in aggregate principal
amount of the Securities of all or any series, as the case may be,
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under any other provision of this Indenture or under
applicable law.
SECTION 15.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of all or any series to take any action specified in Section 15.01,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York, as the Trustee shall determine. Notice of every meeting of the
Holders of Securities of all or any series, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given to all Holders of Securities of each series that may be
affected by the action proposed to be taken at such meeting by publication at
least twice in an Authorized Newspaper prior to the date fixed for the meeting,
the first publication to be not less than 20 nor more than 180 days prior to the
date fixed for the meeting, and the last publication to be not more than five
days prior to the date fixed for the meeting, or such notice may be given to
Holders by mailing the same by first class mail, postage prepaid, to the Holders
of Securities at the time Outstanding, at their addresses as they shall appear
in the Security Register, not less than 20 nor more than 60 days prior to the
date fixed for the meeting. Failure to receive such notice or any defect therein
shall in no case affect the validity of any action taken at such meeting. Any
meeting of Holders of Securities of all or any series shall be valid without
notice if the Holders of all such Securities Outstanding, the Company and the
Trustee are present in person or by proxy or shall have waived notice thereof
before or after the meeting.
SECTION 15.03. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the Securities then
Outstanding of each series that may be affected by the action proposed to be
taken at the meeting shall have requested the Trustee to call a meeting of
Holders of Securities of all series that may be so affected to take any action
authorized in Section 15.01 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed or made the first publication of the notice of such meeting within
30 days after receipt of such request, then the Company or the Holders in the
amount above specified may determine the time and the place in the Borough of
Manhattan, The City of New York for such meeting and may call such meeting by
mailing or publishing notice thereof as provided in Section 15.02.
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SECTION 15.04. Qualification for Voting.
To be entitled to vote at any meeting of Holders a Person shall
(a) be a Holder of one or more Securities of a series affected by the action
proposed to be taken, or (b) be a Person appointed by an instrument in writing
as proxy by the Holder of one or more such Securities. The right of Holders to
have their votes counted shall be subject to the proviso in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 15.05. Quorum; Adjourned Meetings.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action on the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum. No business shall be transacted in
the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Holders of Securities (as provided in Section 15.03), be dissolved. In any
other case the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such a meeting
for a period of not less than 10 days with the same effect, for all intents and
purposes, as though a quorum had been present. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be similarly further
adjourned for a period of not less than 10 days. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 15.02 except that,
in the case of publication, such notice need be published only once but must be
given not less than five days prior to the date on which the meeting is
scheduled to be reconvened, and in the case of mailing, such notice may be
mailed not less than five days prior to such date.
Any Holder of a Security who has executed an instrument in
writing complying with the provisions of Section 1.04 shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided, however, that such Holder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the
Holders of Securities of any series duly held
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in accordance with this Section shall be binding on all Holders of such series
of Securities whether or not present or represented at the meeting.
SECTION 15.06. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities, in regard to proof of the holding of
Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 15.03, in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Holders
of a majority in principal amount of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled to
vote at such meeting, or proxy therefor, shall be entitled to one vote for each
$1,000 principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of
"Outstanding") of Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote except as a Holder of Securities of such series or proxy therefor.
Any meeting of Holders of Securities duly called pursuant to the provisions of
Section 15.02 or 15.03 at which a quorum is present may be adjourned from time
to time, and the meeting may be held as so adjourned without further notice.
SECTION 15.07. Voting Procedure.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballot on which shall be subscribed the signatures of the
Holders of Securities entitled to vote at such meeting, or proxies therefor, and
on which shall be inscribed an identifying number or numbers or to which shall
be attached a list of identifying numbers of the Securities so held or
represented by them. The
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permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Holders of Securities shall be prepared by
the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed or published as provided in Section 15.02 and, if applicable, Section
15.05. The record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 15.08. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the
requisite percentage in aggregate principal amount of Securities of any series
herein provided, entitled to vote at any such meeting, evidenced as provided in
Section 1.04 and filed with the Trustee, shall be effective in lieu of a meeting
of the Holders of Securities of such series, with respect to any matter provided
for in this Article Fifteen.
SECTION 15.09. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders of Securities
of any or all series or any rights expressly or impliedly conferred hereunder to
make such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of Securities of any or
all such series under any provisions of this Indenture or the Securities.
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ARTICLE XVI
CONVERSION OF DEBENTURES
SECTION 16.01. Applicability of Article.
Securities of any series which are convertible into Capital Stock
at the option of the Holder shall be convertible in accordance with their terms
and (unless otherwise specified as contemplated by Section 3.01 for Securities
of any series) in accordance with this Article. Each reference in this Article
Sixteen to "a Security" or "the Securities" refers to the Securities of the
particular series that is convertible into Capital Stock. If more than one
series of Securities with conversion privileges are outstanding at any time, the
provisions of this Article Sixteen shall be applied separately to each such
series.
SECTION 16.02. Right of Holders to
Convert Securities.
Subject to and upon compliance with the terms of the Securities
and the provisions of Section 12.09 and this Article Sixteen, at the option of
the Holder thereof, any Security of any series of any authorized denomination,
or any portion of the principal amount thereof which is $1,000 or any integral
multiple of $1,000, may, at any time during the period specified in the
Securities of such series, or in case such Security or portion thereof shall
have been called for redemption, then in respect of such Security or portion
thereof until and including, but not after (unless the Company shall default in
payment due upon the redemption thereof) the close of business on the Redemption
Date except that in the case of redemption at the option of the Holder, if
specified in the terms of such Securities, such right shall terminate upon
receipt of written notice of the exercise of such option, be converted into duly
authorized, validly issued, fully paid and nonassessable shares of the Capital
Stock into which such Security is convertible as specified in such Security, at
the conversion rate for each $1,000 principal amount of Securities in effect on
the conversion date (such conversion rate reflecting the initial conversion rate
specified in such Security or, in case an adjustment in the conversion rate has
taken place pursuant to the provisions of Section 16.05, then at the applicable
conversion rate as so adjusted) upon surrender of the Security or Securities,
the principal amount of which is so to be converted, to the Company at any time
during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 11.02, accompanied by a written notice
of election to convert as provided in Section 16.03 and, if so required by the
Company
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and the Trustee, by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by the registered
Holder or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and canceled by it, or shall, if
surrendered to the Trustee, be canceled by it, as provided in Section 3.09.
The initial conversion rate in respect of a series of Securities
shall be as specified in the Securities of such series. The conversion rate will
be subject to adjustment on the terms set forth in Section 16.05 or such other
or different terms, if any, as may be specified by Section 3.01 for Securities
of such series. Provisions of this Indenture that apply to conversion of all of
a Security also apply to conversion of a portion of it.
SECTION 16.03. Issuance of Shares of
Capital Stock on Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Company shall
deliver or cause to be delivered at its said office or agency to or upon the
written order of the Holder of the Security or Securities so surrendered a
certificate or certificates representing the number of duly authorized, validly
issued, fully paid and nonassessable shares of Capital Stock into which such
Security or Securities may be converted in accordance with the terms thereof and
the provisions of this Article Sixteen. Prior to delivery of such certificate or
certificates, the Company shall require a written notice at its said office or
agency from the Holder of the Security or Securities so surrendered stating that
the Holder irrevocably elects to convert such Security or Securities, or, if
less than the entire principal amount thereof is to be converted, stating the
portion thereof to be converted. Such notice shall also state the name or names
(with address and social security or other taxpayer identification number) in
which said certificate or certificates are to be issued. Such conversion shall
be deemed to have been made immediately prior to the close of business on the
date that such Security or Securities shall have been surrendered for conversion
and such notice shall have been received by the Company or the Trustee, the
rights of the Holder of such Security or Securities as a Holder shall cease at
such time, the person or persons entitled to receive the shares of Capital Stock
upon conversion of such Security or Securities shall be treated for all purposes
as having become the record holder or holders of such shares of Capital Stock at
such time and such conversion shall be at the conversion
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rate in effect at such time. In the case of any Security of any series which is
converted in part only, upon such conversion, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof, as requested by
such Holder, a new Security or Securities of such series of authorized
denomination in aggregate principal amount equal to the unconverted portion of
such Security.
If the last day on which a Security may be converted is not a
Business Day in a place where a conversion agent is located, the Security may be
surrendered to that conversion agent on the next succeeding day that is a
Business Day.
The Company will not be required to deliver certificates for
shares of Capital Stock upon conversion while its stock transfer books are
closed for a meeting of shareholders or for the payment of dividends or for any
other purpose, but certificates for shares of Capital Stock shall be delivered
as soon as the stock transfer books shall again be opened.
SECTION 16.04. No Payment or Adjustment
for Interest or Dividends.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date (or Special Record
Date for payment of defaulted interest) next preceding any Interest Payment Date
to the opening of business on such Interest Payment Date (except Securities
called for redemption on a Redemption Date within such period) when surrendered
for conversion must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder is to receive on such Interest Payment Date;
provided, however, that if the Company shall default in the payment of said
interest, such funds shall be returned to the payer thereof. Payment of interest
shall be made, as of such Interest Payment Date or such date, as the case may
be, to the Holder of record as of such Regular, or Special Record Date, as
applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any Interest Payment Date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of shares of Capital
Stock into which such Security is convertible delivered by the Company to the
Holder thereof shall be applied, first, to pay the accrued original issue
discount attributable to the period from the date of
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issuance to the date of conversion of such Security, and, second, to pay the
balance of the principal amount of such Security.
SECTION 16.05. Adjustment of Conversion Rate.
Unless otherwise specified as contemplated by Section 3.01 for
Securities of such series, the conversion rate for Securities in effect at any
time shall be subject to adjustment as follows:
(a) In case the Company shall (i) declare a dividend or make a
distribution in the class of Capital Stock into which Securities of such series
are convertible in shares of its Capital Stock, (ii) subdivide the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a greater number of shares, (iii) combine the outstanding
shares of the class of Capital Stock into which Securities of such series are
convertible into a smaller number of shares, or (iv) issue by reclassification
of the shares of the class of Capital Stock into which Securities of such series
are convertible (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation) any
shares, the conversion rate for the Securities of such series in effect at the
time of the record date for such dividend or distribution, or the effective date
of such subdivision, combination or reclassification, shall be proportionately
adjusted so that the Holder of any Security of such series surrendered for
conversion after such time shall be entitled to receive the number and kind of
shares which he would have owned or have been entitled to receive had such
Security been converted immediately prior to such time. Similar adjustments
shall be made whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of the class of Capital Stock into which
Securities of such series are convertible entitling them (for a period expiring
within 45 days after such record date) to subscribe for or purchase shares of
such class of Capital Stock (or securities convertible into shares of such class
of Capital Stock) at a price per share (or, in the case of a right or warrant to
purchase securities convertible into such class of Capital Stock, having a
conversion price per share, after adding thereto the exercise price, computed on
the basis of the maximum number of shares of such class of Capital Stock
issuable upon conversion of such convertible securities, per share of such class
of Capital Stock so issuable) less than the current market price per share of
such class of Capital Stock (as defined in subsection (d) below) on the date on
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which such issuance was declared or otherwise announced by the Company (the
"Determination Date"), the number of shares of such class of Capital Stock into
which each $1,000 principal amount of Securities shall be convertible after such
record date shall be determined by multiplying the number of shares of such
class of Capital Stock into which such principal amount of Securities was
convertible immediately prior to such record date by a fraction, of which the
numerator shall be the number of shares of such class of Capital Stock
outstanding on the Determination Date plus the number of additional shares of
such class of Capital Stock offered for subscription or purchase (or in the case
of a right or warrant to purchase securities convertible into such class of
Capital Stock, the aggregate number of additional shares of such class of
Capital Stock into which the convertible securities so offered are initially
convertible), and of which the denominator shall be the number of shares of such
class of Capital Stock outstanding on the Determination Date plus the number of
shares of such class of Capital Stock obtained by dividing the aggregate
offering price of the total number of shares so offered (or, in the case of a
right or warrant to purchase securities convertible into such class of Capital
Stock, the aggregate initial conversion price of the convertible securities so
offered, after adding thereto the aggregate exercise price of such rights or
warrants computed on the basis of the maximum number of shares of such class of
Capital Stock issuable upon conversion of such convertible securities) by such
current market price. Shares of such class of Capital Stock of the Company 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 to the extent that shares of such
class of Capital Stock are not delivered (or securities convertible into shares
of such class of Capital Stock are not delivered) after the expiration of such
rights or warrants (or, in the case of rights or warrants to purchase securities
convertible into such class of Capital Stock once exercised, the expiration of
the conversion right of such securities) the conversion rate shall be readjusted
to the conversion rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants (or securities convertible into
shares) been made upon the basis of delivery of only the number of shares
actually delivered. In the event that such rights or warrants are not so issued,
the conversion rate shall again be adjusted to be the conversion rate which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the class of Capital Stock into which
Securities of such series are
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convertible (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation) of
evidences of its indebtedness or assets (excluding any cash dividends paid from
retained earnings and dividends payable in Capital Stock for which adjustment is
made pursuant to subsection (a) above) or subscription rights or warrants
(excluding subscription rights or warrants to purchase the class of Capital
Stock into which Securities of such series are convertible), the number of
shares of such class of Capital Stock into which each $1,000 principal amount of
Securities of such series shall be convertible after such record date shall be
determined by multiplying the number of shares of such class of Capital Stock
into which such principal amount of Securities was convertible immediately prior
to such record date by a fraction, of which the numerator shall be the fair
market value of the assets of the Company, after deducting therefrom all
liabilities of the Company and all preferences (including accrued by unpaid
dividends) in respect of classes of Capital Stock having a preference with
respect to the assets of the Company over such class of Capital Stock (all as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a certificate signed by the Chairmen of the Board, the
President, any Vice President, the Treasurer or the Controller of the Company,
filed with the Trustee and each conversion agent) on such record date, and of
which the denominator shall be such fair market value after deducting therefrom
such liabilities and preferences, less the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive, and described
in a statement filed with the Trustee and each conversion agent) of the assets
or evidences of indebtedness, so distributed or of such subscription rights or
warrants applicable, so distributed. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such distribution is
not so made, the conversion rate shall again be adjusted to the conversion rate
which would then be in effect if such record date had not been fixed.
(d) For the purpose of any computation under subsection (b) above
and Section 16.06, the current market price per share of the Capital Stock on
any date as of which such price is to be computed shall mean the average of the
Closing Prices for the 30 consecutive Business Days commencing 45 Business Days
before such date.
(e) No adjustment in the conversion rate shall be required unless
such adjustment would require a cumulative increase or decrease of at least 1%
in such rate; provided, however, that any adjustments which by reason of this
subsection (e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment,
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and provided, further, that adjustments shall be required and made in accordance
with the provisions of this Article Sixteen (other than this subsection (e)) not
later than such time as may be required in order to preserve the tax-free nature
of a distribution for United States income tax purposes to the Holders of
Securities or the class of Capital Stock into which such Securities are
convertible. All calculations under this Article Sixteen shall be made to the
nearest cent or to the nearest one-thousandth of a share, as the case may be.
Anything in this Section 16.05 to the contrary notwithstanding, the Company
shall be entitled to make such adjustments in the conversion rate, in addition
to those required by this Section 16.05, as it in its discretion shall determine
to be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable for United States income tax
purposes.
(f) Whenever the conversion rate is adjusted, as herein provided,
the Company shall promptly file with the Trustee and with the office or agency
maintained by the Company for the conversion of Securities of such series
pursuant to Section 11.02, a certificate of a firm of independent public
accountants of recognized national standing selected by the Board of Directors
(who may be the regular accountants employed by the Company) setting forth the
conversion rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment and a computation thereof. Such certificate
shall be conclusive evidence of the correctness of such adjustment. Neither the
Trustee nor any conversion agent shall be under any duty or responsibility with
respect to any such certificate or any facts or computations set forth therein,
except to exhibit said certificate from time to time to any Holder of such
series desiring to inspect the same. The Company shall promptly cause a notice
setting forth the adjusted conversion rate to be mailed to the Holders of such
series, as their names and addresses appear upon the Security Register.
(g) In the event that at any time, as a result of shares of any
other class of Capital Stock becoming issuable in exchange or substitution for
or in lieu of shares of the class of Capital Stock into which such Securities
are convertible or as a result of an adjustment made pursuant to subsection (a)
above, the Holder of any Security of such series thereafter surrendered for
conversion shall become entitled to receive any shares of the Company other than
shares of the class of Capital Stock into which the Securities of such series
are convertible, thereafter the number of such other shares so receivable upon
conversion of
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any Security 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
class of Capital Stock into which the Securities of such series are convertible
contained in subsections (a) to (f), inclusive, above, and the provisions of
this Article Sixteen with respect to the class of Capital Stock into which the
Securities of such series are convertible shall apply on like terms to any such
other shares.
(h) The conversion rate with respect to any Original Issue
Discount Securities, the terms of which provide for convertibility, shall not be
adjusted during the term of such Original Issue Discount Securities for accrued
original issue discount.
(i) In the event that the Securities of any series are
convertible into more than one class of Capital Stock, the provisions of this
Section 16.05 shall apply separately to events affecting each such class.
SECTION 16.06. No Fractional Shares
to Be Issued.
No fractional shares of Capital Stock shall be issued upon
conversions of Securities. If more than one Security of any series shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities of such series (or
specified portions thereof to the extent permitted hereby) so surrendered.
Instead of a fraction of a share of Capital Stock which would otherwise be
issuable upon conversion of any Security or Securities (or specified portions
thereof), the Company shall pay a cash adjustment in respect of such fraction of
a share in an amount equal to the same fractional interest of the current market
price (as defined in Section 16.05) per share of Capital Stock on the Business
Day next preceding the day of conversion.
SECTION 16.07. Preservation of Conversion
Rights Upon Consolidation,
Merger, Sale or Conveyance.
In case of any consolidation of the Company with, or merger of
the Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in the case of any sale or
transfer of all or substantially all of the assets of the Company, the
corporation formed by such consolidation or the corporation into which the
Company shall have been merged or
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the corporation which shall have acquired such assets, as the case may be, shall
execute and deliver to the Trustee, a supplemental indenture, subject to the
provisions of Articles Nine and Ten as they relate to supplemental indentures,
providing that the Holder of each Security then Outstanding of a series which
was convertible into Capital Stock shall have the right thereafter to convert
such Security into the kind and amount of shares of stock and other securities
and property, including cash, receivable upon such consolidation, merger, sale
or transfer by a holder of the number of shares of Capital Stock of the Company
into which such Securities might have been converted immediately prior to such
consolidation, merger, sale or transfer. Such supplemental indenture shall
conform to the provisions of the Trust Indenture Act of 1939 as then in effect
and shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Sixteen. Neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provision contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or other securities or
property receivable by Holders upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 7.01, may accept
as conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto. If in the
case of any such consolidation, merger, sale or transfer, the stock or other
securities and property receivable by a Holder includes stock or other
securities and property of a corporation other than the successor or purchasing
corporation, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably consider
necessary. The above provisions of this Section 16.07 shall similarly apply to
successive consolidations, mergers, sales or transfers.
SECTION 16.08. Notice to Holders of a
Series Prior to Taking
Certain Types of Action.
With respect to the Securities of any series, in case:
(a) the Company shall authorize the issuance to all holders of
the class of Capital Stock into which Securities of such series are
convertible of rights or warrants to subscribe for or purchase shares of
its Capital Stock or of any other right;
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(b) the Company shall authorize the distribution to all holders
of the class of Capital Stock into which Securities of such series are
convertible of evidences of its indebtedness or assets (except for the
exclusions with respect to certain dividends set forth in Section
16.05(c));
(c) of any subdivision, combination or reclassification of the
class of Capital Stock into which Securities of such series are
convertible or of any consolidation or merger to which the Company is a
party and for which approval by the shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee at the office or
agency maintained for the purpose of conversion of Securities of such series
pursuant to Section 11.02, and shall cause to be mailed to the Holders of such
series, at their last addresses as they shall appear upon the Security Register,
at least ten days prior to the applicable record date hereinafter specified, a
notice stating (i) the date as of which the holders of such class of Capital
Stock to be entitled to receive any such rights, warrants or distribution are to
be determined, or (ii) the date on which any such subdivision, combination,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of such class of Capital
Stock shall be entitled to exchange their Capital Stock of such class for
securities or other property, if any, deliverable upon such subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action. The failure to give the
notice required by this Section 16.08 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, subdivision,
combination, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation, winding up or other action, or the vote upon any of
the foregoing. Such notice shall also be published by and at the expense of the
Company not later than the aforesaid filing date at least once in an Authorized
Newspaper.
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SECTION 16.09. Covenant to Reserve Shares
for Issuance on Conversion
of Securities.
The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Capital Stock, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any series as herein provided, such number of shares of Capital Stock of such
class as shall then be issuable upon the conversion of all Outstanding
Securities of such series. The Company covenants that all shares of Capital
Stock which shall be so issuable shall, when issued or delivered, be duly and
validly issued shares of the class of authorized Capital Stock into which
Securities of such series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 16.10. Compliance With Governmental
Requirements.
The Company covenants that if any shares of Capital Stock
required to be reserved for purposes of conversion of Securities hereunder
require registration or listing with or approval of any governmental authority
under any Federal or State law, pursuant to the Securities Act of 1933, as
amended, or the Securities Exchange Act, or any national or regional securities
exchange on which such Capital Stock is listed at the time of delivery of any
shares of such Capital Stock, before such shares may be issued upon conversion,
the Company will use its best efforts to cause such shares to be duly
registered, listed or approved, as the case may be.
SECTION 16.11. Payment of Taxes Upon Certificates
for Shares Issued Upon Conversion.
The issuance of certificates for shares of Capital Stock upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such name as may be directed
by, the Holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security
-96-
<PAGE>
<PAGE>
converted, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 16.12. Trustee's Duties With Respect
to Conversion Provisions.
The Trustee and any conversion agent shall not at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the conversion rate, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the registration under securities laws, listing,
validity or value (or the kind or amount) of any shares of Capital Stock, or of
any other securities or property, which may at any time be issued or delivered
upon the conversion of any Security; and neither the Trustee nor any conversion
agent makes any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversions, and the Trustee, subject to the provisions of
Section 7.01, and any conversion agent shall not be responsible for any failure
of the Company to comply with any of the covenants of the Company contained in
this Article Sixteen.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.01. Counterparts.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
-97-
<PAGE>
<PAGE>
___________________________________ hereby accepts the trusts
in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Attest: CENTURY COMMUNICATIONS CORP.
__________________________ By____________________________
Secretary
Attest: ___________________________
_________, as Trustee
___________________________ By____________________________
-98-
<PAGE>
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , ,
before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of CENTURY COMMUNICATIONS CORP.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
____________________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the day of , ,
before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is
of
___________________________________, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
____________________________________
Notary Public
<PAGE>
<PAGE>
CENTURY COMMUNICATIONS CORP.
Reconciliation and Tie between Indenture,
dated as of ,
and
Trust Indenture Act of 1939, as amended
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
310(a)(1)....................................................... 7.09
(a)(2)....................................................... 7.09
(a)(3)....................................................... Not applicable
(a)(4)....................................................... Not applicable
(b).......................................................... 7.08, 7.10
311(a).......................................................... 7.13(a)
(b).......................................................... 7.13(b)
312(a).......................................................... 8.01, 8.02(a)
(b).......................................................... 8.02(b)
(c).......................................................... 8.02(c)
313(a).......................................................... 8.03(a)
(a)(4)....................................................... 11.08
(b)(1)....................................................... Not applicable
(b)(2)....................................................... 8.03(b)
(c).......................................................... 8.03(c)
(d).......................................................... 8.03(c)
314(a).......................................................... 8.04
(b).......................................................... Not applicable
(c)(1)....................................................... 1.02
(c)(2)....................................................... 1.02
(c)(3)....................................................... Not applicable
(d).......................................................... Not applicable
(e).......................................................... 1.02
315(a).......................................................... 7.01(a)
(b).......................................................... 7.02,
8.03(a)(6)
(c).......................................................... 7.01(b)
(d)(1)....................................................... 7.01(a)
(d)(2)....................................................... 7.01(c)
(d)(3)....................................................... 7.01(c)
(e).......................................................... 6.14
316(a)(1)(A).................................................... 6.12
(a)(1)(B).................................................... 6.13
(a)(2)....................................................... Not applicable
(b).......................................................... 6.08
317(a)(1)....................................................... 6.03
(a)(2)....................................................... 6.04
(b).......................................................... 11.03
318(a).......................................................... 1.07
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
<PAGE>
Exhibit 12
Computation of Ratio of Earnings to Fixed Charges (amounts in thousands)
<TABLE>
<CAPTION>
Six
Months
Year Ended May 31, Ended
------------------------------------------------------- November 30,
1992 1993 1994 1995 1996 1996
-------- -------- -------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Loss before income tax benefit, minority interest and
extraordinary item $(78,206) $(62,670) $(60,250) $(110,029) $(144,860) $(102,637)
-------- -------- -------- --------- --------- ---------
Fixed Charges:
Interest, including amortization of debt issuance
costs 124,779 (2) 113,866 124,105 141,684 172,390 97,614
Interest capitalized -- -- -- -- 5,200 2,598
Interest portion of rent expense 1,497 1,638 1,843 2,135 3,001 1,501
Preferred stock dividends on subsidiary preferred
stock 4,809 5,883 5,838 4,419 4,256 2,349
-------- -------- -------- --------- --------- ---------
Total fixed charges 131,085 121,387 131,786 148,238 184,847 104,062
-------- -------- -------- --------- --------- ---------
-------- -------- -------- --------- --------- ---------
Adjustments to fixed charges, as defined:
Capitalized interest -- -- -- -- (5,200) (2,598)
Preferred stock dividends on subsidiary preferred stock (4,809) (5,883) (5,838) (4,419) (4,256) (2,349)
-------- -------- -------- --------- --------- ---------
Total adjustments to fixed charges (4,809) (5,883) (5,838) (4,419) (9,456) (4,947)
-------- -------- -------- --------- --------- ---------
Earnings, as defined $ 48,070 $ 52,834 $ 65,698 $ 33,790 $ 30,531 $ (3,523)
-------- -------- -------- --------- --------- ---------
-------- -------- -------- --------- --------- ---------
Ratio of earnings to fixed charges (1) -- -- -- -- -- --
-------- -------- -------- --------- --------- ---------
-------- -------- -------- --------- --------- ---------
Amount by which earnings are less than fixed charges (83,015) (68,553) (66,088) (114,448) (154,316) (107,584)
-------- -------- -------- --------- --------- ---------
-------- -------- -------- --------- --------- ---------
</TABLE>
(1) The ratio of earnings to fixed charges is less than one-to-one and,
therefore, earnings are inadequate to cover fixed charges.
(2) Amount includes the write-off of $7,581 of debt issuance costs
included in the determination of the extraordinary loss on early
retirement of debt in 1992.
<PAGE>
<PAGE>
INDEPENDENT AUDITORS' CONSENT EXHIBIT 23.1
We consent to the incorporation by reference in this Registration Statement of
Century Communications Corp. on Form S-3 of our report dated August 23, 1996,
appearing in the Annual Report on Form 10-K of Century Communications Corp. and
subsidiaries for the year ended May 31, 1996, our report dated May 31, 1996,
with regard to the combined financial statements of ML California Cable
Division, a Division of ML Media Partners, L.P. for the years ended December
29, 1995 and December 30, 1994, included in the Century Communications Corp.
Form 8-K/A2 dated August 16, 1996, and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Stamford, Connecticut
March 31, 1997
<PAGE>
<PAGE>
Exhibit 23.2
Leavy Rosensweig & Hyman
11 East 44th Street, 10th Floor
New York, NY 10017
April 1, 1997
Century Communications Corp.
50 Locust Avenue
New Canaan, CT 06840
Dear Sirs:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
being filed by Century Communications Corp., a New Jersey corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to $500,000,000 aggregate principal amount of
Senior Debt Securities, Senior Subordinated Debt Securities and Subordinated
Debt Securities of the Company.
We consent to the reference to this firm appearing under the
caption "Legal Matters" in the Prospectus that forms a part of the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or the General Rules and Regulations of the Commission.
Very truly yours,
Leavy Rosensweig & Hyman
<PAGE>
