<PAGE>
Exhibit 4.1
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STAPLES, INC.,
AS ISSUER,
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
AS SUBSIDIARY GUARANTORS,
and
THE CHASE MANHATTAN BANK,
AS TRUSTEE
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Indenture
Dated as of May 24, 2000
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Floating Rate Notes due November 26, 2001
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TABLE OF CONTENTS
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Parties.......................................................................1
Recitals of the Company and the Subsidiary Guarantors.........................1
</TABLE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
<TABLE>
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SECTION 101. Definitions.....................................................1
Act..................................................................2
Additional Securities................................................2
Affiliate............................................................2
Agent Member.........................................................2
Applicable Procedures................................................2
Attributable Value...................................................2
Authenticating Agent.................................................3
Board of Directors...................................................3
Board Resolution.....................................................3
Business Day.........................................................3
Company..............................................................3
Company Request......................................................3
Company Order........................................................3
Consolidated Net Tangible Assets.....................................3
Corporate Trust Office...............................................3
corporation..........................................................3
Default..............................................................4
Defaulted Interest...................................................4
Depositary...........................................................4
Distribution Compliance Period.......................................4
dollar...............................................................4
$....................................................................4
DTC..................................................................4
Event of Default.....................................................4
Exchange Act.........................................................4
Expiration Date......................................................4
GAAP.................................................................4
Global Security......................................................4
Holder...............................................................4
Indebtedness.........................................................4
</TABLE>
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<TABLE>
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Indenture............................................................4
Interest Payment Date................................................5
Issue Date...........................................................5
Lien.................................................................5
Maturity.............................................................5
Net Available Proceeds...............................................5
Notice of Default....................................................5
Officers' Certificate................................................5
Opinion of Counsel...................................................6
Outstanding..........................................................6
Paying Agent.........................................................6
Person...............................................................7
Predecessor Security.................................................7
Principal Property...................................................7
Principal Subsidiary.................................................7
Regular Record Date..................................................7
Responsible Officer..................................................7
Restricted Global Security...........................................7
Restricted Securities................................................7
Rule 144.............................................................7
Rule 144A............................................................7
Sale and Lease-Back Transaction......................................7
Securities...........................................................8
Securities Act.......................................................8
Security Register....................................................8
Security Registrar...................................................8
Special Record Date..................................................8
Stated Maturity......................................................8
Subsidiary...........................................................8
Subsidiary Guarantees................................................8
Subsidiary Guarantors................................................8
Successor Security...................................................8
Trust Indenture Act..................................................8
Trustee..............................................................9
United States........................................................9
Vice President.......................................................9
Voting Stock.........................................................9
Wholly Owned.........................................................9
SECTION 102. Compliance Certificates and Opinions............................9
SECTION 103. Form of Documents Delivered to Trustee.........................10
SECTION 104. Acts of Holders; Record Dates..................................10
</TABLE>
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SECTION 105. Notices, Etc., to Trustee, Company and Subsidiary Guarantors...12
SECTION 106. Notice to Holders; Waiver......................................13
SECTION 107. Conflict with Trust Indenture Act..............................13
SECTION 108. Effect of Headings and Table of Contents.......................13
SECTION 109. Successors and Assigns.........................................14
SECTION 110. Separability Clause............................................14
SECTION 111. Benefits of Indenture..........................................14
SECTION 112. Governing Law..................................................14
SECTION 113. Legal Holidays.................................................14
SECTION 114. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities...........................................14
</TABLE>
ARTICLE TWO
Security Forms
<TABLE>
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SECTION 201. Forms Generally................................................15
SECTION 202. Form of Face of Security.......................................16
SECTION 203. Form of Reverse of Security....................................19
SECTION 204. Form of Trustee's Certificate of Authentication................23
SECTION 205. Form of Subsidiary Guarantee...................................24
</TABLE>
ARTICLE THREE
The Securities
<TABLE>
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SECTION 301. Title and Terms................................................26
SECTION 302. Denominations..................................................27
SECTION 303. Execution, Authentication, Delivery and Dating.................27
SECTION 304. Temporary Securities...........................................28
SECTION 305. Registration, Registration of Transfer and Exchange............29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...............32
SECTION 307. Payment of Interest; Interest Rights Preserved.................33
SECTION 308. Persons Deemed Owners..........................................34
SECTION 309. Cancellation...................................................34
SECTION 310. Computation of Interest........................................34
SECTION 311. CUSIP/Common Code/ISIN Number..................................34
</TABLE>
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ARTICLE FOUR
Satisfaction and Discharge
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SECTION 401. Satisfaction and Discharge of Indenture........................35
SECTION 402. Application of Trust Money.....................................36
</TABLE>
ARTICLE FIVE
Default and Remedies
<TABLE>
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SECTION 501. Events of Default..............................................36
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............38
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.....................................................39
SECTION 504. Trustee May File Proofs of Claim...............................39
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Subsidiary Guarantees............................40
SECTION 506. Application of Money Collected.................................40
SECTION 507. Limitation on Suits............................................40
SECTION 508. Unconditional Right of Holders to Receive Principal
and Interest...................................................41
SECTION 509. Restoration of Rights and Remedies.............................41
SECTION 510. Rights and Remedies Cumulative.................................41
SECTION 511. Delay or Omission Not Waiver...................................42
SECTION 512. Control by Holders.............................................42
SECTION 513. Waiver of Past Defaults........................................42
SECTION 514. Undertaking for Costs..........................................43
SECTION 515. Waiver of Stay or Extension Laws...............................43
</TABLE>
ARTICLE SIX
The Trustee
<TABLE>
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SECTION 601. Certain Duties and Responsibilities of the Trustee.............43
SECTION 602. Notice of Defaults.............................................44
SECTION 603. Certain Rights of Trustee......................................44
SECTION 604. Not Responsible for Recitals or Issuance of Securities.........45
SECTION 605. May Hold Securities............................................45
SECTION 606. Money Held in Trust............................................46
SECTION 607. Compensation and Reimbursement.................................46
</TABLE>
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SECTION 608. Disqualification; Conflicting Interests........................46
SECTION 609. Corporate Trustee Required; Eligibility........................47
SECTION 610. Resignation and Removal; Appointment of Successor..............47
SECTION 611. Acceptance of Appointment by Successor.........................48
SECTION 612. Merger, Conversion, Consolidation or Succession to Business....49
SECTION 613. Preferential Collection of Claims Against Company
and Subsidiary Guarantors......................................49
SECTION 614. Appointment of Authenticating Agent............................49
</TABLE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
<TABLE>
<S> <C>
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......51
SECTION 702. Preservation of Information; Communications to Holders.........51
SECTION 703. Reports by Trustee.............................................52
SECTION 704. Reports by Company.............................................52
</TABLE>
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
<TABLE>
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SECTION 801. Company and Subsidiary Guarantors May Consolidate, Etc. Only on
Certain Terms..................................................52
SECTION 802. Successor Substituted..........................................53
</TABLE>
ARTICLE NINE
Supplemental Indentures
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SECTION 901. Supplemental Indentures Without Consent of Holders.............54
SECTION 902. Supplemental Indentures with Consent of Holders................54
SECTION 903. Execution of Supplemental Indentures...........................55
SECTION 904. Effect of Supplemental Indentures..............................56
SECTION 905. Conformity with Trust Indenture Act...........................56
SECTION 906. Reference in Securities to Supplemental Indentures.............56
</TABLE>
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ARTICLE TEN
Covenants
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SECTION 1001. Payment of Principal and Interest.............................56
SECTION 1002. Maintenance of Office or Agency...............................56
SECTION 1003. Money for Security Payments to be Held in Trust...............57
SECTION 1004. Existence.....................................................58
SECTION 1005. Maintenance of Properties.....................................58
SECTION 1006. Payment of Taxes and Other Claims.............................59
SECTION 1007. Limitation on Liens...........................................59
SECTION 1008. Limitation on Sale and Lease-Back Transactions................60
SECTION 1009. Statement by Officers as to Default; Compliance Certificates..61
SECTION 1010. Waiver of Certain Covenants...................................61
SECTION 1011. Available Information.........................................62
SECTION 1012. Acquisition of Securities.....................................62
</TABLE>
ARTICLE ELEVEN
Redemption of Securities
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SECTION 1101. Redemption at Stated Maturity.................................62
</TABLE>
ARTICLE TWELVE
Subsidiary Guarantee
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SECTION 1201. Subsidiary Guarantee..........................................62
SECTION 1202. Execution and Delivery of Subsidiary Guarantees...............64
SECTION 1203. Release of Subsidiary Guarantors..............................65
</TABLE>
ARTICLE THIRTEEN
Meetings of Holders of Securities
<TABLE>
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SECTION 1301. Purposes for Which Meetings May Be Called.....................66
SECTION 1302. Call, Notice and Place of Meetings............................66
SECTION 1303. Persons Entitled to Vote at Meetings..........................66
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SECTION 1304. Quorum; Action................................................67
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment
of Meetings...................................................67
SECTION 1306. Counting Votes and Recording Action of Meetings...............68
</TABLE>
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<PAGE>
INDENTURE, dated as of May 24, 2000, among Staples, Inc., a
corporation duly organized and existing under the laws of Delaware (herein
called the "Company"), having its principal office at 500 Staples Drive,
Framingham, Massachusetts 01702, each of the Subsidiary Guarantors (as
hereinafter defined) and The Chase Manhattan Bank, a banking corporation duly
organized and existing under the laws of New York, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The Company has duly authorized the creation of an issue of
its Floating Rate Notes due November 26, 2001 of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
The Company and the presently existing Subsidiary Guarantors
are members of the same consolidated group of companies and are engaged in
related businesses; the presently existing Subsidiary Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities;
accordingly, each presently existing Subsidiary Guarantor has duly authorized
the execution and delivery of this Indenture to provide for its full,
unconditional, irrevocable and joint and several guarantee of the Securities.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, to make the Subsidiary Guarantees
(as hereinafter defined) of each of the Subsidiary Guarantors, when executed by
the respective Subsidiary Guarantors and endorsed on the Securities, the valid
obligations of the respective Subsidiary Guarantors, and to make this Indenture
a valid agreement of the Company and each of the Subsidiary Guarantors 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
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<PAGE>
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(3) unless the context otherwise requires, any reference to an
"Article" or a "Section", or to an "Annex", refers to an Article or
Section of, or to an Annex attached to, this Indenture, as the case may
be;
(4) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor
statute, rule or regulation thereto) as it may be amended from time to
time; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Securities" means Securities, which shall be
considered to be of the same series as the Securities issued hereunder, that are
issued from time to time after the Issue Date under the terms of this Indenture,
subject to prior authorization by a Board Resolution (except for Securities
authenticated and delivered upon registration of transfer of, or in lieu of,
other Securities pursuant to Sections 304, 305, 306 or 906).
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, DTC.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of DTC applicable to such transaction and as in effect from
time to time.
"Attributable Value" in respect of any Sale and Lease-Back
Transaction means, as of the time of determination, the lesser of (i) the sale
price of the Principal Property so leased multiplied by a fraction the numerator
of which is the remaining portion of the base term of the lease included in such
Sale and Lease-Back Transaction and the denominator of which is the base term of
such lease, and (ii) the total obligation (discounted to present value at the
rate of interest applicable to the Securities then Outstanding at the time of
determination compounded quarterly) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Lease-Back Transaction.
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"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means, with respect to the Company,
either the board of directors of the Company or any committee of that board duly
authorized to act for it in respect hereof, and with respect to any Subsidiary
Guarantor, either the board of directors of such Subsidiary Guarantor or any
committee of that board duly authorized to act for it in respect hereof.
"Board Resolution" means, with respect to the Company or a
Subsidiary Guarantor, a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or such Subsidiary Guarantor, as the case may
be, to have been duly adopted by its Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, with respect to any particular place,
each Monday, Tuesday, Wednesday, Thursday and Friday, other than any such day on
which banking institutions in The City of New York, New York or London, England
are authorized or obligated by law or executive order to close and with respect
to any due date for the payment of principal or interest in respect of any
Security, a day on which commercial banks and foreign exchange markets are open
for general business in the place of presentation.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" of the Company means the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities
(excluding any indebtedness for money borrowed having a maturity of less than 12
months from the date of the most recent consolidated balance sheet of the
Company but which by its terms is renewable or extendable beyond 12 months from
such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like intangibles,
all as set forth on the most recent consolidated balance sheet of the Company
and computed in accordance with GAAP.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located c/o Chase National Corporate Services, Inc., 73 Tremont Street, Boston,
MA 02108-3913, Attention: Corporate Trust, or at any other time at such other
address as the Trustee may designate from time to time by notice to the Holders.
"corporation" means a corporation, association, company, joint
stock company, limited liability company, partnership or business trust.
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"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Security, a clearing
agency trust which is registered as such under the Exchange Act and is
designated by the Company to act as Depositary for such Security (or any
successor clearing agency as registered).
"Distribution Compliance Period" has the meaning specified in
Section 201.
"dollar" and "$" means the lawful currency of the United
States of America.
"DTC" means The Depository Trust Company, a New York
corporation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934
(including any successor act thereto), as it may be amended from time to time,
and (unless the context otherwise requires) includes the rules and regulations
of the Commission promulgated thereunder.
"Expiration Date" has the meaning specified in Section 104.
"GAAP" means generally accepted accounting principles in the
United States consistently applied as in effect on the date of this Indenture.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means, with respect to any Security, a Person in
whose name such Security is registered in the Security Register.
"Indebtedness" of any Person means (without duplication), with
respect to any Person, (i) every obligation of such Person for money borrowed,
(ii) every obligation of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) every reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person and (iv) every obligation of the type
referred to in clauses (i) through (iii) of another Person the payment of which
such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor, guarantor or otherwise (but only, in the case of clause
(iv), to the extent such Person has guaranteed or is responsible or liable for
such obligations).
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the Annexes attached to this instrument.
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"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means the date on which the Securities are
originally issued.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, encumbrance, or other security arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right or
otherwise.
"Net Available Proceeds" from any Sale and Lease-Back
Transaction by any Person means cash or readily marketable cash equivalents
received (including by way of sale or discounting of a note, installment
receivable or other receivable, but excluding any other consideration received
in the form of assumption by the acquiree of Indebtedness or obligations
relating to the properties or assets that are the subject of such Sale and
Lease-Back Transaction or received in any other noncash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such Sale
and Lease-Back Transaction; (ii) all payments made by such Person or its
Subsidiaries on any Indebtedness which is secured in whole or in part by any
such properties and assets in accordance with the terms of any Lien upon or with
respect to any such properties and assets or which must, by the terms of such
Lien, or in order to obtain a necessary consent to such Sale and Lease-Back
Transaction or by applicable law, be repaid out of the proceeds from such Sale
and Lease-Back Transaction; and (iii) all distributions and other payments made
to minority interest holders in Subsidiaries of such Person or joint ventures as
a result of such Sale and Lease-Back Transaction; PROVIDED, HOWEVER, that for
purposes of clause (ii) of Section 1008 hereof the amount of Net Available
Proceeds to be applied to any acquisition of Principal Properties or retirement
of Securities or other Indebtedness shall be reduced by an amount equal to the
sum of (A) an amount equal to the redemption price with respect to such
Securities delivered within 180 days after the effective date of such Sales and
Lease-Back Transaction to the Trustee for retirement and cancellation and (B)
the principal amount, plus any premium or fee paid in connection with a
redemption in accordance with the terms, of such other Indebtedness voluntarily
retired by the Company within such 180-day period, excluding in each case
retirements pursuant to mandatory sinking fund or prepayment provisions and
payments at maturity.
"Notice of Default" means a written notice of the kind
specified in Section 501(3).
"Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or a
Subsidiary Guarantor, as the case may be, and delivered to the Trustee.
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"Opinion of Counsel" means, as to the Company or a Subsidiary
Guarantor, a written opinion of counsel, who may be counsel for the Company or
such Subsidiary Guarantor, including counsel employed by the Company or a
Subsidiary Guarantor, as the case may be, and who shall be acceptable to the
Trustee, delivered to the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or any Subsidiary Guarantor)
in trust or set aside and segregated in trust by the Company or a
Subsidiary Guarantor (if the Company or a Subsidiary Guarantor shall
act as a Paying Agent) for the Holders of such Securities; PROVIDED
that, if such Securities are to be redeemed, notice of such redemption
shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made; and
(iii) Securities that have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company, any Subsidiary
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, of any Subsidiary Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Securities that a responsible officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company, a Subsidiary Guarantor or
any other obligor upon the Securities or any Affiliate of the Company, of any
Subsidiary Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company and,
as of the date of this Indenture, shall include the Corporate Trust Office of
the Trustee in the City of Boston.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real property or any permanent
improvement thereon owned by the Company or any of its Subsidiaries including,
without limitation, any office, store, warehouse, manufacturing facility or
plant or any portion thereof, and any equipment located at or comprising a part
of any such property, having a net book value, as of the date of determination,
in excess of 1% of the most recently calculated Consolidated Net Tangible Assets
of the Company.
"Principal Subsidiary" means any Subsidiary which owns any
Principal Property.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the fifteenth day (regardless of whether a Business Day) next
preceding such Interest Payment Date.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the Corporate Trust Office, including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or Assistant Treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Restricted Global Security" has the meaning specified in
Section 201.
"Restricted Securities" means all Securities required pursuant
to Section 305(c) to bear a Restricted Securities Legend. Such term includes
the Restricted Global Security.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Lease-Back Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any Principal Property that,
more than 12 months after (i) the completion of the acquisition, construction,
development or improvement of such Principal Property or (ii) the placing in
operation of such Principal Property or of such Principal Property as so
constructed, developed or improved, has been or is being sold, conveyed,
transferred or otherwise disposed of by such Person to such lender or investor
or to any Person to whom funds have been or are to be advanced by such lender on
the security of such Principal Property. The term of such arrangement, as of any
date (the "measurement date"), shall end on the date of the last payment of rent
or any other amount
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<PAGE>
due under such arrangement on or prior to the first date after the measurement
date on which such arrangement may be terminated by the lessee, at its sole
option, without payment of a penalty.
"Securities" means the securities described in the recitals
hereof.
"Securities Act" means the United States Securities Act of
1933 (including any successor act thereto), as it may be amended from time to
time, and (unless the context otherwise requires) includes the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
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 a Person or by one or more other Subsidiaries of the Company or that
Person. 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.
"Subsidiary Guarantees" means the Guarantees of each
Subsidiary Guarantor in the form of Section 205 and as provided in Article
Twelve.
"Subsidiary Guarantors" means (i) Staples the Office
Superstore, Inc., a Delaware corporation, Staples the Office Superstore East,
Inc., a Delaware corporation, and Staples Contract & Commercial, Inc., a
Delaware corporation, and (ii) any successor of the foregoing; in each case (i)
and (ii) until such Subsidiary Guarantor ceases to be such in accordance with
Section 1203 hereof.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939 as in force at the date as of which this instrument was executed,
except as provided in Section 905; PROVIDED, HOWEVER, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939, as amended.
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<PAGE>
"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 such successor Trustee.
"United States" means the United States of America (including
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Vice President", when used with respect to the Company, each
Subsidiary Guarantor or the Trustee, means any vice president, regardless of
whether designated by a number or a word or words added before or after the
title "vice president".
"Voting Stock" of a Person means all classes of capital stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned" means, when used in connection with any
Subsidiary, a Subsidiary of which all of the issued and outstanding shares of
Voting Stock (except shares required as directors' qualifying shares) are owned
by the Company and/or one or more Wholly Owned Subsidiaries.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
Subsidiary Guarantor and any other obligor on the Securities, as appropriate,
shall each furnish to the Trustee such certificates and opinions as may be
required hereunder or under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company, or an Opinion of Counsel if to be given by counsel
and shall comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual or firm 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
or firm, he or it has made such examination or investigation as is
necessary to enable him or it to express an informed opinion as to
whether such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual or firm, such condition or covenant has been complied
with.
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<PAGE>
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any
Subsidiary Guarantor or other obligor, as applicable, may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice,
consent, waiver or other action permitted or required 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 of such Holders duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are received by the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of
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<PAGE>
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.
The ownership of Securities shall be proved by the Security
Register.
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, the
Paying Agent, any Subsidiary Guarantor or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
The Company may set any day as a record date, written notice
of which will be sent to the Trustee, for the purpose of determining the Holders
of Outstanding Securities entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities,
PROVIDED that the Company may not set a record date for, and the provisions of
this paragraph shall not apply with respect to, the giving or making of any
notice, declaration, request or direction referred to in the next paragraph. If
not set by the Company prior to the first solicitation of a Holder made by any
Person in respect of any such matter referred to in the foregoing sentence, the
record date for any such matter shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, whether or not
such Holders remain Holders after such record date; PROVIDED that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date
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<PAGE>
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; PROVIDED that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or any
Subsidiary Guarantor 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, or
(2) the Company or any Subsidiary Guarantor 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, in the case of the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument, Attention: Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Company
and, in the case of any Subsidiary Guarantor, to it at the address of
the Company's principal office specified in the first paragraph of this
instrument, Attention Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by such Subsidiary
Guarantor.
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<PAGE>
The Company and any Subsidiary Guarantor shall promptly
transmit to the Trustee any request, demand, authorization, direction, notice,
consent, waiver or Act received from any Holder.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register on the date such notice is mailed not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. 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.
Except as otherwise provided herein, all notices to Holders
will be valid if published in a leading English language daily newspaper or
newspapers published in New York City or such other English language daily
newspaper with general circulation in the United States, as the Trustee may
approve. Any notice will be deemed to have been given on the date of publication
or, if so published more than once or on different dates, on the date of the
first publication. It is expected that publication will normally be made in the
WALL STREET JOURNAL (New York edition). If publication as provided above is not
practicable, notice will be given in such other manner, and will be deemed to
have been given on such date, as the Trustee may approve.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture, the Company, the Subsidiary Guarantors and the
Trustee shall be deemed for all purposes hereof to be subject to and governed by
the Trust Indenture Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction of any
provision hereof.
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<PAGE>
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and any Subsidiary Guarantor shall bind their successors and assigns, regardless
of whether so expressed.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture, the Securities or the
Subsidiary Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or the
Subsidiary Guarantees, express or implied, shall give to any Person, other than
the parties hereto, the Holders of Securities and their respective successors
hereunder any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE SUBSIDIARY GUARANTEES
ENDORSED THEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
SECTION 113. LEGAL HOLIDAYS.
If any Interest Payment Date, other than at Maturity, for any
Security would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next day that is a Business Day, except
that if such Business Day is in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding Business Day. If the
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made at
the Stated Maturity of such Security, PROVIDED that no interest shall accrue for
the period from and after such Stated Maturity.
SECTION 114. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, each of the
Company, Staples the Office Superstore East, Inc. and Staples Contract and
Commercial, Inc. (i) acknowledges that it has, by separate written instrument,
irrevocably designated and appointed CT Corporation System as its
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<PAGE>
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Securities, the Subsidiary Guarantees or this
Indenture that may be instituted in any Federal or State court in the Borough of
Manhattan, The City of New York or brought under Federal or State securities
laws or brought by the Trustee in its capacity as a trustee hereunder, and
acknowledges that CT Corporation System has accepted such designation, (ii)
submits to the jurisdiction of any such court in any such suit or proceeding and
waives, to the extent possible, any objection which it may now or hereafter have
to the laying of venue of any such proceeding or any claim of inconvenient
forum, and (iii) agrees that service of process upon CT Corporation System shall
be deemed in every respect effective service of process upon it in any such suit
or proceeding. The Company and each such Subsidiary Guarantor further agrees to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect so long as this
Indenture shall be in full force and effect and for the continuous period from
the date hereof through and including the date which is 550 calendar days after
the date upon which the last of the Securities shall be outstanding. The Trustee
agrees to mail or deliver a copy of any service referred to in (iii) above to
the Chairman and Chief Executive Officer of the Company at its principal office
at the address set out on page 1 of this Indenture or at any other address
previously notified in writing to the Trustee.
To the extent that the Company or any Subsidiary Guarantor has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment before judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
respective obligations under this Indenture and the Securities to the fullest
extent permitted by law.
ARTICLE TWO
Security Forms
SECTION 201. FORMS GENERALLY.
The Securities, the Subsidiary Guarantees to be endorsed
thereon and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, 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 depositary
thereof or as may, consistently herewith, be determined by the officers
executing such Securities or Subsidiary Guarantees, as the case may be, as
evidenced by their execution of such Securities or Subsidiary Guarantees, as the
case may be.
The definitive Securities and Subsidiary Guarantees 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
or Subsidiary Guarantees, as the case may be, as evidenced by their execution of
such Securities or Subsidiary Guarantees, as the case may be.
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<PAGE>
In certain cases described elsewhere herein, the legends set
forth in the first three paragraphs of Section 202 may be omitted from
Securities issued hereunder.
Securities offered and sold in their initial distribution in
reliance on Rule 144A shall be issued in the form of one or more Global
Securities (each, a "Restricted Global Security"), in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 202 and 203 with such applicable legends as are provided for in Section
202, except as otherwise permitted herein. Such Global Securities shall be
registered in the name of DTC, as Depositary, or a nominee for DTC, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided, and deposited with the Trustee, as custodian for DTC, for credit to
the respective accounts of owners of beneficial interests in such Securities or
to such other accounts as they may direct. The Restricted Global Securities and
all other Securities evidencing the debt, or any portion of the debt, initially
evidenced by such Global Securities, other than Securities transferred or
exchanged upon certification as provided in Section 305, shall collectively be
referred to herein as the "Restricted Securities."
SECTION 202. FORM OF FACE OF SECURITY.
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY --THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH STAPLES, INC. ("STAPLES") OR ANY AFFILIATE OF
STAPLES WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO STAPLES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
STAPLES' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
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<PAGE>
[INCLUDE IF SECURITY IS A GLOBAL SECURITY - THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW YORK, NEW YORK 10004, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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<PAGE>
STAPLES, INC.
Floating Rate Notes due November 26, 2001
Common Code No. __________
ISIN No. __________
No. __________ $________
STAPLES, INC., a corporation organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the principal sum
of ________________ Dollars [IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT
--, or such other principal amount (which, when taken together with the
principal amounts of all other Outstanding Securities, shall not exceed in the
aggregate at any time $175,000,000 as may be set forth in the records of the
Trustee hereinafter referred to in accordance with the Indenture,] on November
26, 2001 and to pay interest thereon from May 24, 2000 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly on February 24, May 24, August 24 and November 24 in each year,
commencing August 24, 2000, at the rate per annum determined in accordance with
the provisions on the reverse hereof, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the interest rate then in effect on any overdue
principal and on any overdue installment of interest until paid. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the
fifteenth day (regardless of whether a Business Day), next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will
be made at the office or agency of the Trustee or any Paying Agent maintained
for that purpose in the City of Boston, Massachusetts, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that, at the option of
the Company payment of interest may be made by dollar check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: May 24, 2000
[Seal] STAPLES, INC.
Attest: By__________________________
Name:
Title:
--------------------------
Name:
Title:
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities
of the Company designated as its Floating Rate Notes due November 26, 2001
(herein called the "Securities"), limited initially (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$175,000,000, issued and to be issued under an Indenture, dated as of May 24,
2000 (herein called the "Indenture", which term shall have the meaning assigned
to it in such instrument), among the Company, the Subsidiary Guarantors named
therein and The Chase Manhattan Bank, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Subsidiary Guarantors, the Trustee and the
Holders and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Company shall be entitled, subject to the provisions of
the Indenture, to issue additional Securities which shall have identical terms
to the Securities issued on May 24, 2000, other than with respect to the date of
issuance, issue price and amount of interest payable on the first payment date
applicable to such Securities.
The Securities are not subject to redemption prior to the
Stated Maturity. No sinking fund is provided for the Securities.
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<PAGE>
The Securities will bear interest at a rate per annum, reset
quarterly, equal to three-month LIBOR (as defined below) plus 85 basis points
(.85%) as determined by the Calculation Agent (as defined below). Interest will
be computed on the basis of a 360-day year and the actual number of days in the
applicable Interest Period (as defined below). Interest is payable quarterly in
arrears on each Interest Payment Date for the period commencing on and including
the immediately preceding Interest Payment Date and ending on and including the
day preceding the next Interest Payment Date (an "Interest Period"), with the
exception that the first Interest Period shall commence on and include May 24,
2000.
The interest rate for each Interest Period will be determined
by the Calculation Agent in accordance with the following provisions:
The per annum rate of interest for each Interest Period will
be three-month LIBOR on the second Business Day preceding the beginning of the
relevant Interest Reset Date (as defined below) for such Interest Period (the
"Interest Determination Date") plus the applicable spread; PROVIDED that the
interest rate for the first Interest Period shall be 7.67%. "LIBOR" for each
subsequent Interest Period will be determined by the Calculation Agent in
accordance with the following provisions:
(i) On each Interest Determination Date, the Calculation Agent
will ascertain the offered rate for three-month deposits in
U.S. dollars in the London interbank market, which appears on
the Telerate Page 3750 (as defined below), as of 11:00 a.m.
(London time) on such Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page 3750, or the
Telerate Page 3750 is unavailable, the Calculation Agent
will request each of four major banks in the London
interbank market (the "Reference Banks") to provide the
Calculation Agent with its offered quotation (expressed as a
rate per annum) for three-month deposits in U.S. dollars to
leading banks in the London interbank market at
approximately 11:00 a.m. (London time) on the Interest
Determination Date. If at least two such quotations are
provided, LIBOR in respect of the Interest Determination
Date will be the arithmetic mean of such quotations.
(iii) If less than two of the Reference Banks provide the
Calculation Agent with such offered quotations, LIBOR in
respect of that Interest Determination Date will be the
arithmetic mean of the rates quoted by three major banks in
The City of New York (selected by the Calculation Agent) at
approximately 11:00 a.m. (New York City time) on that
Interest Determination Date for three-month loans in U.S.
dollars to leading European banks, in a principal amount
equal to an amount of not less than $1,000,000 that is
representative for a single transaction in such market at
such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR will be LIBOR in effect on
such Interest Determination Date.
"Interest Reset Date" means, with respect to any Interest
Period, the first day of such Interest Period.
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<PAGE>
"Telerate Page 3750" means the display designated as page
"3750" on the Dow Jones Telerate Service (or such other page as may replace that
page on that service for the purpose of displaying the LIBOR index on a daily
basis).
All percentages resulting from any calculation on the
Securities will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)),
and U.S. dollar amounts used in or resulting from such calculations will be
rounded to the nearest cent (with one-half cent being rounded upward).
The Company covenants that, so long as any of the Securities
remain outstanding, it will maintain under appointment an agent (the
"Calculation Agent"), initially the Trustee, to calculate the rate of interest
payable on the Securities in respect of each Interest Period. If the Calculation
Agent is unable or unwilling to continue to act as such, or if the Calculation
Agent fails to establish the applicable rate of interest for any Interest
Period, or if the Company removes the Calculation Agent, the Company will
appoint the office of another bank to act as the Calculation Agent; provided,
however, that the Calculation Agent shall not resign or be removed until
acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Calculation Agent.
[IF A GLOBAL SECURITY INSERT -- In the event of a deposit or
withdrawal of an interest in this Security (including upon an exchange or
transfer of this Security in part only) effected in accordance with the
Applicable Procedures, the Security Registrar, upon receipt of notice of such
event from the Depositary's custodian for this Security, shall make an
adjustment on its records to reflect an increase or decrease of the Outstanding
principal amount of this Security resulting from such deposit or withdrawal, as
the case may be.]
Subject to certain limitations in the Indenture, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder or holder, as the case may be, to the
extent required to permit compliance by any such holder with Rule 144A under the
Securities Act. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Company under the
Indenture and this Security are guaranteed pursuant to Subsidiary Guarantees
endorsed hereon as provided in the Indenture. Each Holder, by holding this
Security, agrees to all of the terms and provisions of said Subsidiary
Guarantees. The Indenture provides that a Subsidiary Guarantor shall be released
from its Subsidiary Guarantee upon compliance with certain conditions.
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<PAGE>
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Subsidiary Guarantors and the rights of the
Holders of the Securities under the Indenture at any time by the Company, the
Subsidiary Guarantors and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company or the Subsidiary Guarantors with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Trustee, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE, THIS SECURITY AND THE SUBSIDIARY GUARANTEE
ENDORSED HEREON SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
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<PAGE>
[Attach the following Schedule A in the case of a Global Security:]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Global
Security shall be $________. The following decreases/increases in the principal
amount at maturity of this Global Security have been made:
<TABLE>
<CAPTION>
Decrease in Increase in Total Principal
Date of Principal Principal Amount at Maturity Notation Made by
Decrease/ Amount at Amount at Following such or on Behalf of
INCREASE MATURITY MATURITY DECREASE/INCREASE TRUSTEE
<S> <C> <C> <C> <C>
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
---------- ------------ ------------ -------------------- --------------------
</TABLE>
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within mentioned
Indenture.
The Chase Manhattan Bank,
AS TRUSTEE
By
-----------------------
AUTHORIZED SIGNATURE
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<PAGE>
SECTION 205. FORM OF SUBSIDIARY GUARANTEE.
SUBSIDIARY GUARANTEE
For value received, each of the Subsidiary Guarantors named
below hereby jointly and severally fully and unconditionally guarantees to the
Holder of the Security upon which this Subsidiary Guarantee is endorsed, and to
the Trustee on behalf of such Holder, pursuant to the Indenture and to the
Trustee and its successors and assigns, regardless of the validity and
enforceability of the Indenture, the Securities or the obligations of the
Company under the Indenture or the Securities, that:
(i) the principal of and interest on the Securities will be
promptly paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal of and interest on the
Securities, to the extent lawful, and all other payment obligations of
the Company to the Holders or the Trustee thereunder or under the
Indenture will be promptly paid in full, all in accordance with the
terms thereof and of the Indenture; and
(ii) in case of any extension of time for payment or renewal
of any Securities, that the same will be promptly paid in full when due
in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this
Subsidiary Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of each Subsidiary Guarantor under the Indenture and its Subsidiary Guarantee
shall be reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.
If the Company shall default in the due and punctual payment
of any obligation under the Indenture including under the Securities, without
the necessity of action by the Trustee or any Holder of Securities, the
Subsidiary Guarantor will promptly and fully make such payments in the same
manner as required to have been made by the Company.
To the extent permitted by law, the obligations of each
Subsidiary Guarantor hereunder shall be continuing, absolute and unconditional,
and shall not be impaired, modified, released or limited by any occurrence or
condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of,
or any change in, any of the obligations and liabilities of the Company
contained in the Securities or in the Indenture or of any other Subsidiary
Guarantor contained in the Indenture, (ii) any impairment, modification, release
or limitation of the liability of the Company or of any other Subsidiary
Guarantor in bankruptcy, or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of any applicable federal
or state bankruptcy, insolvency, reorganization or other similar laws or from
the decision of any court, (iii) the assertion or exercise by the Company, any
other Subsidiary Guarantor, or the Trustee of any rights or remedies under the
Securities or the Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or
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<PAGE>
readjustment of, or other similar proceeding affecting, the Company or any other
Subsidiary Guarantor or any of their assets, or the disaffirmance of the
Indenture or the Securities in any such proceeding, (v) the release or discharge
of the Company or any other Subsidiary Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
such instruments by operation of law, (vi) the unenforceability of the
Securities or the Indenture or (vii) any other circumstance which might
otherwise constitute a legal or equitable discharge of a surety or guarantor.
Each Subsidiary Guarantor hereby (i) waives diligence,
presentment, demand for payment, filing of claims with a court in the event of
the merger or bankruptcy of the Company, any right to require a proceeding first
against the Company or to realize on any collateral, protest, notice and all
demands whatsoever with respect to the payment obligations of the Company under
the Indenture, (ii) agrees that its obligations hereunder constitute a guarantee
of payment and not of collection and are not in any way conditional or
contingent upon any attempt to collect from or enforce against the Company or
upon any other condition or contingency, (iii) acknowledges that any agreement,
instrument or document evidencing the obligations of the Company under the
Indenture may be transferred and that the benefit of its obligations hereunder
shall extend to each holder of any agreement, instrument or document evidencing
such obligations without notice to them and (iv) covenants that its Subsidiary
Guarantee will not be discharged except by complete performance of the payment
obligations under the Securities and the Indenture.
Each Subsidiary Guarantor further agrees that if at any time
all or any part of any payment therefore applied by any person to any payment
obligation is, or must be, rescinded or returned for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
the Company or any other Subsidiary Guarantor, such obligation shall for the
purposes of the Subsidiary Guarantee, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Subsidiary Guarantee made pursuant to
the Indenture shall continue to be effective or be reinstated, as the case may
be, as to such payment obligation as though such application had not been made.
Each Subsidiary Guarantor shall, to the extent of any payment
made by it pursuant to the Indenture, be subrogated to all rights of the Trustee
and the Holders of the Securities as to all payments and damages payable by the
Company with respect to which payments have been made by such Subsidiary
Guarantor, but, so long as any payment obligation remains outstanding, such
right of subrogation on the part of such Subsidiary Guarantor shall be subject
to the payment in full or discharge of all such payment obligations.
Each of the Subsidiary Guarantors shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders or the Trustee
under the Subsidiary Guarantees made pursuant to the Indenture.
The Subsidiary Guarantors or any particular Subsidiary
Guarantor shall be released from this Subsidiary Guarantee upon the terms and
subject to certain conditions provided in the Indenture.
By delivery of a Supplemental Indenture to the Trustee in
accordance with the terms of the Indenture, each Person that becomes a
Subsidiary Guarantor after the date of the Indenture
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<PAGE>
will be deemed to have executed and delivered this Subsidiary Guarantee for the
benefit of the Holder of the Security upon which this Subsidiary Guarantee is
endorsed with the same effect as if such Subsidiary Guarantor was named below
and has executed and delivered this Subsidiary Guarantee.
All terms used in this Subsidiary Guarantee which are defined
in the Indenture referred to in the Security upon which this Subsidiary
Guarantee is endorsed shall have the meanings assigned to them in such
Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Security upon which
this Subsidiary Guarantee is endorsed shall have been executed by the Trustee
under the Indenture by manual signature.
Reference is made to the Indenture for further provisions with
respect to this Subsidiary Guarantee.
THIS SUBSIDIARY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has
caused this Subsidiary Guarantee to be duly executed.
[Insert Names of Subsidiary Guarantors]
By________________________
Name:
Title:
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is initially limited to
$175,000,000, and, subject to prior authorization by a Board Resolution,
Additional Notes of the same series which may be issued subsequently except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Section 304, 305, 306
or 906.
The Securities shall be known and designated as the Floating
Rate Notes due November 26, 2001 of the Company. Their Stated Maturity shall be
November 26, 2001 and they shall bear interest from May 24, 2000 or from the
most recent Interest Payment Date to which
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<PAGE>
interest has been paid or duly provided for, as the case may be, payable
quarterly on February 24, May 24, August 24 and November 24, commencing August
24, 2000, until the principal thereof is paid or made available for payment. The
interest rate for the first Interest Period shall be 7.67% per annum, and the
rate thereafter shall be three-month LIBOR plus 85 basis points (.85%),
determined as more fully provided in the form of Security.
The principal of and interest on the Securities shall be
payable at the office or agency of the Trustee or any Paying Agent in the City
of Boston, Massachusetts maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be made by dollar check drawn
on a bank in The City of New York, New York mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or if a
Holder has given transfer instructions to the Company, in dollars by credit or
transfer to a dollar-denominated account (or any other account to which dollars
may be credited or transferred) specified by the payee.
The Company will pay principal on any Security upon
presentation and surrender of the Security at the specified office of the Paying
Agent or any additional or substitute paying agent by a dollar check drawn on a
bank in The City of New York, New York.
The Securities shall be guaranteed by the Subsidiary
Guarantors as provided in Article Twelve.
The Company will pay all stamp taxes and other duties, if any,
which may be imposed by the Unites States or any political subdivision thereof
or taxing authority thereof or therein with respect to the execution or delivery
of this Indenture, the issuance of the Global Securities or the exchange from
time to time of Global Securities.
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President, its
Chief Financial Officer or one of its Vice Presidents, under a facsimile of its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries.
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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<PAGE>
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company and having endorsed thereon the Subsidiary Guarantees executed as
provided in Section 1202 by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities with such Subsidiary Guarantees endorsed thereon;
and the Trustee in accordance with such Company Order shall authenticate and
deliver such Securities with such Subsidiary Guarantees endorsed thereon as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Subsidiary Guarantee 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.
The Company shall be entitled, subject to Section 301, to
issue Additional Securities under this Indenture which shall have identical
terms as the Securities issued on the Issue Date, other than with respect to the
date of issuance, issue price and amount of interest payable on the first
payment date applicable to such series. The Securities issued on the Issue Date
and any Additional Securities shall be treated as a single series for all
purposes under this Indenture.
With respect to any Additional Securities, the Company shall
provide the Trustee with appropriate evidence that the Additional Securities
have been duly authorized and issued and set forth in a Board Resolution and an
Officers' Certificate or such other appropriate evidence that the Additional
Securities have been duly authorized and issued, a copy of each of which shall
be delivered to the Trustee, containing the following information:
(1) the aggregate principal amount of such Additional Securities
to be authenticated and delivered pursuant to this Indenture;
and
(2) the issue price, the issue date and the common code and ISIN
numbers of such Additional Securities and the amount of
interest payable on the first payment date applicable thereto;
PROVIDED, HOWEVER, that no Additional Securities may be issued
at a price that would cause such Additional Notes to have
"original issue discount" within the meaning of Section 1273
of the U.S. Internal Revenue Code of 1986, as amended.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company
may execute, and upon receipt of a Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and having endorsed thereon the Subsidiary Guarantees substantially
of the tenor of the definitive Subsidiary Guarantees in lieu of which they are
issued duly executed by the Subsidiary
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<PAGE>
Guarantors and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities and Subsidiary
Guarantees may determine, as evidenced by their execution of such Securities and
Subsidiary Guarantees.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations and like tenor having endorsed
thereon Subsidiary Guarantees executed by the Subsidiary Guarantors. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) 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 designated pursuant to Section 1002 being herein
sometimes collectively 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 at an office or agency of the Company
designated pursuant to Section 1002 for such purpose, and subject to the other
provisions of this Section 305, 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 any authorized denominations and of a
like aggregate principal amount.
At the option of the Holder, and subject to the other
provisions of this Section 305, Securities may be exchanged for other Securities
of any authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, and subject to the other
provisions of this Section 305, the Company shall execute, the Subsidiary
Guarantors shall execute the Subsidiary Guarantees endorsed thereon and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees endorsed thereon
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and the respective Subsidiary Guarantors,
evidencing the same debt and Subsidiary Guarantees, and subject to the other
provisions of this Section 305, entitled to the same benefits under this
Indenture, as the Securities and Subsidiary Guarantees 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
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written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304 or 906 not involving any transfer.
(b) Notwithstanding any other provisions of this Indenture or
the Securities, transfers and exchanges of Securities and beneficial interests
therein of the kinds specified in this Section 305(b) shall be made only in
accordance with this Section 305(b). Transfers and exchanges subject to this
Section 305(b) shall also be subject to the other provisions of this Indenture
that are not inconsistent with this Section 305(b).
(1) LIMITATION ON TRANSFERS OF A GLOBAL SECURITY. A Global
Security may not be transferred, in whole or in part, to any Person
other than a Depositary or nominee or nominees therefor, and no such
transfer to any such other Person may be registered; PROVIDED that this
clause (1) shall not prohibit any transfer of a Security that is issued
in exchange for a Global Security but is not itself a Global Security.
No transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section
305(b)(1) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 305(b).
(2) EXCHANGES. In the event that a Restricted Global Security
or any portion thereof is exchanged for Securities other than Global
Securities, such other Securities may in turn be exchanged (on transfer
or otherwise) for Securities that are not Global Securities or for
beneficial interests in a Global Security (if any is then outstanding)
only in accordance with such procedures, which shall be substantially
consistent with the provisions of clause (1) above and any Applicable
Procedures, as may be from time to time adopted by the Company and the
Trustee.
(c) Each Restricted Security and Global Security issued
hereunder shall, upon issuance, bear the legends required by Section 202 to be
applied to such a Security and such required legends shall not be removed from
such Security except as provided in the next sentence or paragraph (d) of this
Section 305. The legend required for a Restricted Security may be removed from a
Security if there is delivered to the Company such satisfactory evidence, which
may include an opinion of independent counsel, as may be reasonably required by
the Company that neither such legend nor the restrictions on transfer set forth
therein are required to ensure that transfers of such Security will not violate
the registration requirements of the Securities Act. Upon provision of such
satisfactory evidence, the Trustee, at the written direction of the Company,
shall authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear such
legend. If such a legend required for a Restricted Security has been removed
from a Security as provided above, no other Security issued in exchange for all
or any part of such Security shall bear such legend, unless the Company has
reasonable cause to
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believe that such other Security is a "restricted security" within the meaning
of Rule 144 and instructs the Trustee in writing to cause a legend to appear
thereon.
(d) The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of a Depositary for such Global
Security or a nominee thereof and delivered to such depositary or a
nominee thereof, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than a Depositary for such Global Security or a nominee thereof unless
(A) the Depositary has notified the Company that it is unwilling or
unable to continue as depositary for such Global Security, (B) the
Depositary (i) is closed for business for a continuous period of 14
days (other than by reason of statutory or other holidays) or (ii)
announces an intention permanently to cease business or does in fact do
so, (C) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of certificated Securities or (D)
there shall have occurred and be continuing an Event of Default with
respect to such Global Security. Any Global Security exchanged pursuant
to clause (A) or (B) above shall be so exchanged in whole and not in
part and any Global Security exchanged pursuant to clause (C) or (D)
above may be exchanged in whole or from time to time in part as
directed by the Company or the Trustee. In addition, beneficial
interests in the Global Notes may be exchanged for non-global,
certificated Securities upon request by or on behalf of DTC upon not
less than 60 days' prior written notice to the Trustee, with a copy of
such notice delivered to the Company. Any Security issued in exchange
for a Global Security or any portion thereof shall be a Global
Security, PROVIDED that any such Security so issued that is registered
in the name of a Person other than DTC or a nominee thereof shall not
be a Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Security issuable on such exchange to or
upon the written order of the Depositary or an authorized
representative thereof.
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(4) In the event of the occurrence of any of the events
specified in clause (2) above, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form, without interest coupons.
(5) No Agent Members nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security (including DTC and account holders and
participants therein unless DTC, or its nominee is the registered
holder of such Global Security), or under any Global Security, and the
registered holder thereof may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by DTC or a nominee thereof, as the case may
be, or impair, as between DTC, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
holder of any Security.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute a new Security, the Subsidiary Guarantors shall execute
the Subsidiary Guarantees endorsed thereon, and the Trustee shall authenticate
and deliver in exchange therefor, a new Security of like tenor and principal
amount having endorsed thereon the Subsidiary Guarantees executed by the
Subsidiary Guarantors 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 like tenor and principal amount having endorsed
thereon the Subsidiary Guarantees executed by the Subsidiary Guarantors and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security, and the Subsidiary Guarantees endorsed
thereon, shall constitute an original additional contractual obligation of the
Company and the respective Subsidiary Guarantors, whether
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<PAGE>
or not the destroyed, lost or stolen Security and the Subsidiary Guarantees
endorsed thereon 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 duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
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.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (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 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 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 by the Trustee from the
funds deposited by the Company as herein above provided to the Persons
in whose names the Securities (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 in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the 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 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company, the Subsidiary Guarantors 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 (subject to Section 307)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Subsidiary Guarantors,
the Trustee nor any agent of the Company, the Subsidiary Guarantors or the
Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and 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
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of
the actual number of days elapsed divided by 360.
SECTION 311. CUSIP/COMMON CODE/ISIN NUMBER.
The Company in issuing the Securities may use "CUSIP", "common
code" and/or "ISIN" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP", "common code" and/or "ISIN" numbers in notices of redemption
as a convenience to Holders;
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<PAGE>
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP", "common code" or
"ISIN" numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon request by the Company, 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, on
demand of and at the expense of the Company, shall execute proper instruments
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 306 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 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company or a Subsidiary Guarantor, 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 such purpose an
amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of
such deposit (in the case of
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<PAGE>
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or a Subsidiary Guarantor has paid or caused
to be paid all other sums payable hereunder by the Company and the
Subsidiary Guarantors; 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 pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614, the rights of the Trustee under Section 603 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Default and Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein, 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 the principal of any Security
at its Maturity; or
(2) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Subsidiary Guarantors in this Indenture
(other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section
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<PAGE>
specifically dealt with), 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 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
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Subsidiary Guarantor in an involuntary case or proceeding under any
applicable United States Federal or State or other applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any Subsidiary Guarantor
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Subsidiary Guarantor under any applicable
Federal or State or other applicable law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Subsidiary Guarantor or of any
substantial part of the property of the Company or any Subsidiary
Guarantor, or ordering the winding up or liquidation of the affairs of
the Company or any Subsidiary Guarantor, 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
(5) the commencement by the Company or any Subsidiary
Guarantor of a voluntary case or proceeding under any applicable United
States Federal or State or other applicable 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 the
Company or any Subsidiary Guarantor to the entry of a decree or order
for relief in respect of the Company or any Subsidiary Guarantor in an
involuntary case or proceeding under any applicable Federal or State or
other applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Subsidiary Guarantor, or the
filing by the Company or any Subsidiary Guarantor of a petition or
answer or consent seeking reorganization or relief under any applicable
Federal or State or other applicable law, or the consent by the Company
or any Subsidiary Guarantor 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 any Subsidiary Guarantor or of any substantial part of the
property of the Company or Subsidiary Guarantor, or the making by the
Company or any Subsidiary Guarantor of an assignment for the benefit of
creditors, or the admission by the Company or any Subsidiary Guarantor
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any Subsidiary
Guarantor in furtherance of any such action.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Sections 501(4) or (5)) occurs and is continuing, then and in every
such case the Trustee or any Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Securities 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 and
any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 501(4) or (5) occurs, the principal of and any
accrued interest on the Securities then Outstanding shall become immediately due
and payable without any declaration or other Act on the part of the Trustee or
any Holder.
At any time after such a declaration of acceleration 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, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and, to
the extent that payment of such interest is lawful, interest
thereon at the rate provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the 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, other than the non-payment of the
principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate provided by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of col lection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all
amounts due to the Trustee under Section 607.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company,
any Subsidiary Guarantor or any other obligor upon the Securities, or the
property of the Company or its creditors or of any Subsidiary Guarantor and its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
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election of a trustee in bankruptcy or similar official and may be a member of
the creditors' committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
SUBSIDIARY GUARANTEES.
All rights of action and claims under this Indenture or the
Securities or any Subsidiary Guarantee may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or 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 costs and expenses of collection,
including all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses and disbursements of the Trustee, its
agents and counsel, and all other amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of 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 interest, respectively.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it 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;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, any Security or any Subsidiary
Guarantee, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
307) interest on such Security on the respective Stated Maturities expressed in
such Security and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, 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
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remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Article Six, the Holders of a majority in principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Subsidiary Guarantee,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities not joining therein, it being understood that the Trustee
shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security 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
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Indenture, and the Company, any Subsidiary Guarantor, the Trustee and any
Holder shall be restored to their former position and rights hereunder, but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or any Subsidiary Guarantor.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Subsidiary Guarantors 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 each of the Company and the Subsidiary Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
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.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 indemnity
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satisfactory to it against such risk or liability is not reasonably assured to
it. 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
601.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
actually known to a Responsible Officer of the Trustee hereunder as and to the
extent provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in the case
of any default of the character specified in Section 501(3), no such notice to
Holders shall be given until at least 90 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.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully
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 satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
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(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, attorneys, custodians or nominees 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 liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights of powers conferred upon
it by this Indenture or any action taken, suffered or omitted by it
pursuant to a direction of the Company or any Holders pursuant to the
provisions of this Indenture; and
(i) the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights
or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities and the
Subsidiary Guarantees, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company or the Subsidiary Guarantors, as
the case may be, 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 or the Subsidiary Guarantees
endorsed thereon. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or any Subsidiary
Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company and any Subsidiary Guarantor with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
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SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Subsidiary Guarantor, as the
case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company and each Subsidiary Guarantor jointly and
severally unconditionally agree
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, 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 willful misconduct; and
(3) to indemnify the Trustee, its officers, directors, agents
and employees for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
enforcing this Indenture against the Company and the Subsidiary
Guarantors and defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Company and the Subsidiary Guarantors
shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company and the
Subsidiary Guarantors shall pay the reasonable fees and expenses of
such counsel. This Section 607 shall survive the termination of the
Indenture or the earlier resignation or removal of the Trustee.
To secure the Company's and each Subsidiary Guarantor's payment obligations in
this Section 607, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, in its capacity as Trustee,
except money or property held in trust to pay principal of, and interest on,
particular Securities.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in
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the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus (or the parent holding company of which has a
combined capital and surplus) of at least $50,000,000. If such Person 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 Person (or parent holding
company thereof) 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 610. 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 under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 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 609
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 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,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, 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 and the appointment of a successor Trustee.
(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, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security 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.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company, the Subsidiary Guarantors 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 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. Upon
request of any such successor Trustee, the Company and the Subsidiary Guarantors
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
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 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation, association or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation, association or other entity 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, IPSO FACTO 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 notwithstanding anything herein to the contrary. 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 authenti cating 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
AND SUBSIDIARY GUARANTORS.
If and when the Trustee shall be or become a creditor of the
Company, any Subsidiary Guarantor or any other obligor upon the Securities or
any Subsidiary Guarantor, the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company, such
Subsidiary Guarantor or any such other obligor.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption or pursuant to Section 306,
and Securities so authenticated, and the Subsidiary Guarantees endorsed thereon,
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authen tication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent, except for
authentication of original issues or lost, stolen or mutilated securities. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, or authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent 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 Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section,
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such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities described in the
within-mentioned Indenture.
The Chase Manhattan Bank,
As Trustee
By___________________________,
As Authenticating Agent
By___________________________
Authorized Signature
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee:
(a) annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date,
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;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. 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 701 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 701 upon receipt of a new list so furnished.
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(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
the corresponding rights and duties of the Trustee, shall be provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Subsidiary Guarantors and the Trustee that
neither the Company, the Subsidiary Guarantors nor the Trustee nor any agent of
any of them shall be held accountable by reason of any disclosure of information
as to the names and addresses of Holders made pursuant to the Trust Indenture
Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after November 30 of each year, commencing
with November 30, 2000, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) 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 the Securities are listed, with the Commission, with the Company and with
the Subsidiary Guarantors. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company and each of the Subsidiary Guarantors shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY AND SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC. ONLY
ON CERTAIN TERMS.
Neither the Company nor a Subsidiary Guarantor shall
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person and neither the
Company nor a Subsidiary Guarantor shall permit any Person to consolidate with
or merge into the Company or such Subsidiary Guarantor or convey,
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transfer or lease its properties and assets substantially as an entirety to the
Company or such Subsidiary Guarantor, unless:
(1) in case the Company or such Subsidiary Guarantor shall
consolidate with or merge into another Person or convey, transfer or
lease its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the
Company or such Subsidiary Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company or such Subsidiary Guarantor substantially as an
entirety shall be a corporation, limited liability company,
partnership or trust, shall be organized and validly 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
interest on all the Securities or the obligation under the Subsidiary
Guarantee, as the case may be, and the performance or observance of
every covenant of this Indenture on the part of the Company or such
Subsidiary Guarantor, as the case may be, to be performed or observed;
(2) immediately after giving effect to such 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;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
or any Principal Subsidiary would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor Person, as
the case may be, on or prior to the effective date of such
consolidation, merger or conveyance, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably
with (or prior to) all indebtedness secured thereby; and
(4) 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 802. SUCCESSOR SUBSTITUTED.
(a) Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person 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 Person had been named as the Company herein,
and thereafter, except in the case
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of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) Upon any consolidation of a Subsidiary Guarantor with, or merger of
such Subsidiary Guarantor into, any other Person or any transfer, conveyance,
sale, lease or other disposition of all or substantially all of the properties
and assets of such Subsidiary Guarantor in accordance with Section 801, the
Successor Subsidiary Guarantor shall succeed to, and be substituted for, and may
exercise every right and power of, such Subsidiary Guarantor under this
Indenture with the same effect as if such successor Person had been named as a
Subsidiary Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and its Subsidiary Guarantee.
ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by
their respective Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or any Subsidiary Guarantor and the assumption by any such
successor of the covenants of the Company or any Subsidiary Guarantor
herein and in the Securities or Subsidiary Guarantee, as the case may
be; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1007 or otherwise; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, PROVIDED such action pursuant to
this Clause (4) shall not adversely affect the interests of the Holders
in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company, the Subsidiary
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Guarantors and the Trustee, the Company, when authorized by a Board Resolution,
the Subsidiary Guarantors, when authorized by their respective Board
Resolutions, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders 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
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
thereon or the amount payable upon redemption thereof, or change the
place of payment where, or the coin or currency in which, any Security
or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof, or permit the Company to redeem the
Securities if, prior to such action, the Company is not permitted to do
so, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, 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 reduce the percentage in principal
amount of the Outstanding Securities required for the adoption of a
resolution or the quorum required at any meeting of Holders at which a
resolution is adopted, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) impair the unconditional nature of the Subsidiary
Guarantees, or
(5) modify the obligation of the Company to deliver
information as set forth in Section 1011.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be
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obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise. No
supplemental indenture shall modify this Section 903 without the prior consent
of the Trustee.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Promptly after execution by the Company of any
supplemental indenture, the Company shall transmit to the Holders a notice
setting forth the substance of the supplemental indenture.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities 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 and the Subsidiary
Guarantors shall so determine, new Securities so modified as to conform, in the
opinion of the Company and the Subsidiary Guarantors, to any such supplemental
indenture may be prepared and executed by the Company, the Subsidiary Guarantees
may be endorsed thereon and such new Securities and authenticated and delivered
by the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be presented or
surrendered for payment, where
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Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company or any Subsidiary Guarantor in
respect of the Securities, any Subsidiary Guarantee endorsed thereon and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company and each Subsidiary
Guarantor 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 (in or outside the Borough of Manhattan, The City of
New York where the Securities 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 the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company or any Subsidiary Guarantor shall at any time
act as its own Paying Agent, it will, on or before each due date of the
principal of or interest on any of the Securities, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal 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.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent 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 or interest on Securities 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) in the making of any payment of
principal or interest; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which 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 or
interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, New York (which
is expected to be the WALL STREET JOURNAL), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary Guarantor; PROVIDED, HOWEVER, that the Company shall not be required
to preserve any such right or franchise if the Board of Directors in good faith
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in 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 and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation
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or maintenance of any of such properties if such discontinuance is, as
determined by the Board of Directors in good faith, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, 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 of its Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. LIMITATION ON LIENS.
The Company will not, and will not permit any Principal
Subsidiary to, create or suffer to exist any Lien to secure any Indebtedness of
the Company or any Subsidiary upon any Principal Property, or upon shares of
capital stock or evidences of Indebtedness issued by any Principal Subsidiary
and owned by the Company or any Principal Subsidiary, whether owned at the date
of this Indenture or thereafter acquired, without making, or causing such
Principal Subsidiary to make, effective provision to secure all of the
Securities from time to time Outstanding by such Lien, equally and ratably with
any and all other Indebtedness thereby secured, so long as such Indebtedness
shall be so secured.
The foregoing restrictions shall not apply to Indebtedness
secured by Liens existing on the date of this Indenture or to any of the
following:
(1) Liens on any property existing at the time of the
acquisition thereof;
(2) Liens on property of a corporation existing at the time
such corporation is merged into, consolidated with or acquired by the
Company or a Principal Subsidiary or at the time of a sale, lease or
other disposition of the properties of such corporation (or a division
thereof) as an entirety or substantially as an entirety to the Company
or a Principal Subsidiary, PROVIDED that such Lien as a result of such
merger, consolidation, acquisition, sale, lease or other disposition is
not extended to property owned by the Company or such Principal
Subsidiary immediately prior thereto;
(3) Liens on property of a corporation existing at the time
such corporation becomes a Principal Subsidiary;
(4) Liens securing Indebtedness of a Principal Subsidiary to
the Company or to another Principal Subsidiary;
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(5) Liens to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or
to secure Indebtedness incurred to provide funds for any such purpose
(including purchase money security interest or money mortgage on real
or personal property), PROVIDED that the commitment of the creditor to
extend the credit secured by any such Liens shall have been obtained
not later than twenty-four months after the later of (a) the completion
of the acquisition, construction, development or improvement of such
property or (b) the placing in operation of such property or of such
property as so construed, developed or improved;
(6) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of the underlying property, whether directly or indirectly,
by way of share disposition or otherwise; PROVIDED that the Company
must have disposed of such property within 180 days from the creation
of such Liens and any Indebtedness secured by such Liens shall be
without recourse to the Company or any Subsidiary;
(7) Liens in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision thereof, to secure partial, progress, advance or
other payments;
(8) Liens to secure Indebtedness on any Principal Property of
joint ventures which constitute Principal Subsidiaries in which the
Company or a Principal Subsidiary has an interest, to the extent such
Liens are on property or assets of, or equity interests in, such joint
ventures; and
(9) any extension, renewal or replacement or refunding of any
Lien existing on the date of the Indenture or referred to in clauses
(1) to (3) or (5); PROVIDED, HOWEVER, that the principal amount of
Indebtedness secured thereby and not otherwise authorized by clauses
(1) to (3) or (5), shall not exceed the principal amount of
Indebtedness, plus any premium or fee payable in connection with any
such extension, renewal, replacement, or refunding, so secured at the
time such extension, renewal, replacement or refunding.
Notwithstanding the foregoing, the Company and its Principal
Subsidiaries may create or suffer to exist Liens which would otherwise be
prohibited by this Section 1007 securing Indebtedness in an aggregate amount
which, together with all outstanding Attributable Value of all Sale and
Lease-Back Transactions permitted by the last paragraph of Section 1008 and all
Indebtedness secured by Liens permitted pursuant to this paragraph, does not
exceed 10% of Consolidated Net Tangible Assets of the Company.
SECTION 1008. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, nor will it permit any Principal
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to
any Principal Property (except for (x) a transaction providing for a lease for a
term, including any renewal thereof, of not more than three years, by the end of
which term it is intended that the use of such Principal Property by the lessee
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will be discontinued, (y) a transaction between the Company and a Principal
Subsidiary or between Principal Subsidiaries, and (z) a transaction between the
Company or a Principal Subsidiary and a joint venture in which the Company or a
Principal Subsidiary has an interest), unless either (i) the Company or such
Principal Subsidiary would be entitled pursuant to Section 1007 to issue, assume
or guarantee Indebtedness secured by a Lien on such Principal Property without
equally and ratably securing the Securities or (ii) the Company or such
Principal Subsidiary shall apply or cause to be applied within 180 days after
the effective date of such Sale and Lease-Back Transaction, an amount equal to
the Net Available Proceeds therefrom to (A) the acquisition of one or more
Principal Properties or (B) to the retirement of Securities or the repayment of
other Indebtedness of the Company or a Principal Subsidiary (other than such
Indebtedness owned by the Company or a Principal Subsidiary) which, in the case
of such Indebtedness of the Company, is not subordinate and junior in right of
payment to the prior payment of the Securities.
Notwithstanding the foregoing, the Company or any Principal
Subsidiary may enter into a Sale and Lease-Back Transaction which would
otherwise be prohibited by this Section 1008 to the extent that the Attributable
Value thereof, together with all indebtedness secured by Liens permitted
pursuant to the last paragraph of Section 1007 and the Attributable Value of all
other Sale and Lease-Back Transactions permitted by this paragraph, does not
exceed 10% of Consolidated Net Tangible Assets of the Company.
SECTION 1009. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES.
(a) The Company and the Subsidiary Guarantors will deliver to
the Trustee, within 120 days after the end of their respective fiscal years,
ending after the date hereof an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Company or such Subsidiary
Guarantor, as the case may be, has fulfilled all its obligations hereunder or is
in default in the performance and observance of any of the terms, provisions and
conditions of Section 801 or Sections 1004 to 1008, inclusive, and if the
Company or any Subsidiary Guarantor, as the case may be, shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Company and each Subsidiary Guarantor shall deliver to
the Trustee, as soon as possible and in any event within five days after the
Company or such Subsidiary Guarantor becomes aware or should reasonably become
aware of the occurrence of an Event of Default or a Default, an Officers'
Certificate setting forth the details of such Event of Default or default, and
the action which the Company or such Subsidiary Guarantor proposes to take with
respect thereto.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company or any Subsidiary Guarantor may omit in any
particular instance to comply with any covenant or condition set forth in
Section 801, 802 and Sections 1004 to 1008, if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
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compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and such Subsidiary Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 1011. AVAILABLE INFORMATION.
Until such time as all Outstanding Securities are freely
transferable without restriction under the Securities Act, the Company (i) will
use its best efforts to be subject to the reporting requirements of Section 13
or Section 15(d) of the Exchange Act and to file in a timely manner all reports
and other documents required to be filed pursuant thereto or in connection
therewith and (ii) will take, and will cause the Subsidiary Guarantors to take,
all actions necessary to permit resales of the Securities and the Subsidiary
Guarantees endorsed thereon pursuant to Rule 144A, including furnishing to any
Holder (or of a beneficial interest in a Security), or to any prospective
purchaser designated by such a Holder or beneficial owner, upon request of such
Holder or beneficial owner, financial and other information required to be
delivered under paragraph (d)(4) of Rule 144A.
SECTION 1012. ACQUISITION OF SECURITIES.
The Company shall not, and shall cause its Affiliates not to,
resell or otherwise dispose of any Securities acquired by them, in the open
market or otherwise, and shall, and shall cause its Affiliates to, surrender all
such Securities acquired to the Trustee for cancellation.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. REDEMPTION AT STATED MATURITY. The Securities may not be
redeemed at the option of the Company prior to their Stated Maturity.
ARTICLE TWELVE
Subsidiary Guarantee
SECTION 1201. SUBSIDIARY GUARANTEE.
Each Subsidiary Guarantor hereby absolutely and
unconditionally guarantees, jointly and severally with each other Subsidiary
Guarantor, to each Holder of a Security authenticated and delivered by the
Trustee pursuant to this Indenture and to the Trustee and its
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successors and assigns, regardless of the validity and enforceability of the
Indenture, the Securities or the obligations of the Company under the Indenture
or the Securities, that:
(i) the principal of, and interest on the Securities will be
promptly paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal of, and interest on
the Securities, to the extent lawful, and all other payment obligations
of the Company to the Holders or the Trustee thereunder or under this
Indenture will be promptly paid in full, all in accordance with the
terms thereof and of the Indenture; and
(ii) in case of any extension of time for payment or renewal
of any Securities, that the same will be promptly paid in full when due
in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
Notwithstanding the foregoing, in the event that this
Subsidiary Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of each Subsidiary Guarantor under the Indenture and its Subsidiary Guarantee
shall be reduced to the maximum amount permissible under such fraudulent
conveyance or similar law.
If the Company shall default in the due and punctual payment
of any obligation under this Indenture including under the Securities, without
the necessity of action by the Trustee or any Holder of Securities, the
Subsidiary Guarantor will promptly and fully make such payments in the same
manner as required to have been made by the Company.
To the extent permitted by law, the obligations of each
Subsidiary Guarantor hereunder shall be continuing, absolute and unconditional,
and shall not be impaired, modified, released or limited by an occurrence or
condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of,
or any change in, any of the obligations and liabilities of the Company
contained in the Securities or in this Indenture or of any other Subsidiary
Guarantor contained in the Indenture, (ii) any impairment, modification, release
or limitation of the liability of the Company or of any other Subsidiary
Guarantor in bankruptcy, or any remedy for the enforcement thereof, resulting
from the operation of any present or future provision of any applicable federal
or state bankruptcy, insolvency, reorganization or other similar laws or from
the decision of any court, (iii) the assertion or exercise by the Company, any
other Subsidiary Guarantor, or the Trustee of any rights or remedies under the
Securities or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company or any other Subsidiary Guarantor or any of their assets,
or the disaffirmance of this Indenture or the Securities in any such proceeding,
(v) the release or discharge of the Company or any other Subsidiary Guarantor
from the performance or observance of any agreement, covenant, term of condition
contained in any of such instruments by operation of law, (vi) the
unenforceability of the Securities or this Indenture or (vii) any other
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circumstance which might otherwise constitute a legal or equitable discharge of
a surety or guarantor.
Each Subsidiary Guarantor hereby (i) waives diligence,
presentment, demand for payment, filing of claims with a court in the event of
the merger or bankruptcy of the Company, any right to require a proceeding first
against the Company or to realize on any collateral, protest, notice and all
demands whatsoever with respect to the payment obligations of the Company under
this Indenture, (ii) agrees that its obligations hereunder constitute a
guarantee of payment and not of collection and are not in any way conditional or
contingent upon any attempt to collect from or enforce against the Company or
upon any other condition or contingency, (iii) acknowledges that any agreement,
instrument or document evidencing the obligations of the Company under this
Indenture may be transferred and that the benefit of its obligations hereunder
shall extend to each holder of any agreement, instrument or document evidencing
such obligations without notice to them and (iv) covenants that its Subsidiary
Guarantee will not be discharged except by complete performance of the payment
obligations under the Securities and this Indenture.
Each Subsidiary Guarantor further agrees that if at any time
all or any part of any payment therefore applied by any person to any payment
obligation is, or must be, rescinded or returned for any reason whatsoever,
including, without limitation, the insolvency, bankruptcy or reorganization of
the Company or any other Subsidiary Guarantor, such obligation shall for the
purposes of the Subsidiary Guarantee, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Subsidiary Guarantee made pursuant to
this Indenture shall continue to be effective or be reinstated, as the case may
be, as to such payment obligation as though such application had not been made.
Each Subsidiary Guarantor shall, to the extent of any payment
made by it pursuant to this Indenture, be subrogated to all rights of the
Trustee and the Holders of the Securities as to all payments and damages payable
by the Company with respect to which payments have been made by such Subsidiary
Guarantor, but, so long as any payment obligation remains outstanding, such
right of subrogation on the part of such Subsidiary Guarantor shall be subject
to the payment in full or discharge of all such payment obligations.
Each of the Subsidiary Guarantors shall have the right to seek
contribution from any other non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders or the Trustee
under the Subsidiary Guarantees made pursuant to this Indenture.
SECTION 1202. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
The Subsidiary Guarantees to be endorsed on the Securities
shall include the terms of the Subsidiary Guarantee set forth in Section 1201
and any other terms that may be set forth in the form established pursuant to
Section 205. Each of the Subsidiary Guarantors hereby agrees to execute its
Subsidiary Guarantee, in a form established pursuant to Section 205, to be
endorsed on each Security authenticated and delivered by the Trustee.
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The Subsidiary Guarantee shall be executed on behalf of each
respective Subsidiary Guarantor by any of such Subsidiary Guarantor's Chairman
of the Board, Vice Chairman of the Board, Chief Executive Officer, President,
one of its Vice Presidents, or its Secretary. The signature of any or all of
these persons on the Subsidiary Guarantee may be manual or facsimile.
A Subsidiary Guarantee bearing the manual or facsimile
signature of individuals who were at any time the proper officers of a
Subsidiary Guarantor shall bind such Subsidiary Guarantor, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of the Security on which such Subsidiary Guarantee
is endorsed or did not hold such offices at the date of such Subsidiary
Guarantee.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee endorsed thereon on behalf of the Subsidiary Guarantors and
shall bind each Subsidiary Guarantor notwithstanding the fact that Subsidiary
Guarantee does not bear the signature of such Subsidiary Guarantor. Each of the
Subsidiary Guarantors hereby jointly and severally agrees that its Subsidiary
Guarantee set forth in Section 1201 and in the form of Subsidiary Guarantee
established pursuant to Section 205 shall remain in full force and effect
notwithstanding any failure to endorse a Subsidiary Guarantee on any Security.
SECTION 1203. RELEASE OF SUBSIDIARY GUARANTORS.
Each Subsidiary Guarantee will remain in effect with respect
to the respective Subsidiary Guarantor until the entire principal of and
interest on the Securities shall have been paid in full or otherwise discharged
in accordance with the provisions of the Securities and this Indenture and all
amounts owing to the Trustee hereunder have been paid; PROVIDED, HOWEVER, that
if all of the issued and outstanding shares of Voting Stock of such Subsidiary
Guarantor are sold, directly or indirectly, by the Company or another Wholly
Owned Subsidiary of the Company to any Person (other than the Company or another
Wholly Owned Subsidiary of the Company), then, upon delivery by the Company of
an Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent, if any, herein provided for relating to the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee and
this Article Twelve have been complied with, such Subsidiary Guarantor shall be
released and discharged of its obligations under its Subsidiary Guarantee and
under this Article Twelve without any action on the part of the Trustee or any
Holder, and the Trustee shall execute any documents reasonably required in order
to acknowledge the release of such Subsidiary Guarantor from its obligations
under its Subsidiary Guarantee endorsed on the Securities and under this Article
Twelve.
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<PAGE>
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 1301, to be held at
such time and at such place in The City of New York, New York as the
Trustee shall determine. Notice of every meeting of Holders of
Securities, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 105, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities shall have requested the Trustee
to call a meeting of the Holders of Securities for any purpose
specified in Section 1301, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities in the amount specified,
as the case may be, may determine the time and the place in The City of
New York, New York for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this
Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (a) a Holder of one or more Outstanding Securities, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. 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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<PAGE>
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting (subject to repeated applications of this sentence). Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage of
the principal amount of the Outstanding Securities which shall constitute a
quorum.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 902) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than a majority in
aggregate principal amount of Outstanding Securities.
Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) 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 deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104
or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by Holders of
Securities as provided in Section 1302(b), 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 Persons entitled to vote a majority in principal amount of the
Outstanding Securities represented at the meeting.
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<PAGE>
(c) At any meeting, each Holder of a Security or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities
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 a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant
to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities represented at the meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
Attest: STAPLES, INC.
__________________________ By __________________________
Name: Name:
Title: Title:
STAPLES THE OFFICE SUPERSTORE, INC.,
as Subsidiary Guarantor
By __________________________
Name:
Title:
STAPLES THE OFFICE SUPERSTORE
EAST, INC.,
as Subsidiary Guarantor
By __________________________
Name:
Title:
STAPLES CONTRACT &
COMMERCIAL, INC.,
as Subsidiary Guarantor
By __________________________
Name:
Title:
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<PAGE>
THE CHASE MANHATTAN BANK,
as Trustee
By __________________________
Authorized Signature
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<PAGE>
TOWN OF FRAMINGHAM )
) ss.:
COUNTY OF MIDDLESEX )
On the _____ day of May, 2000 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 and that
the foregoing instrument was executed by authority of the Board of Directors of
said corporation.
------------------------------
TOWN OF FRAMINGHAM )
) ss.:
COUNTY OF MIDDLESEX )
On the _____ day of May, 2000 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 and that
the foregoing instrument was executed by authority of the Board of Directors of
said corporation.
------------------------------
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<PAGE>
CITY OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of May, 2000 before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that [he-she] is _______________________________ of _____________________, one
of the corporations described in and which executed the foregoing instrument and
that the foregoing instrument was executed by authority of the Board of
Directors of said corporation.
------------------------------
CITY OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of May, 2000 before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that [he-she] is _______________________________ of _____________________, one
of the corporations described in and which executed the foregoing instrument and
that the foregoing instrument was executed by authority of the Board of
Directors of said corporation.
------------------------------
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